Tag: Constitutional Law

A few months ago, Legal Bytes reported some important developments and judicial rulings concerning social media and freedom of the press in the United States (see, Freedom of the Press = Freedom to Tweet). But lest you be lulled into a false sense of security, freedom of the press only applies to the ‘press’ and not to jurors.

You have all seen the motion picture and television courtroom scenes played out numerous times. Evidence is admitted or not admissible. The jury is admonished to disregard certain remarks or testimony as inadmissible or irrelevant. Jurors are told they must reach a verdict on only the evidence that is allowable during the trial – nothing else. Now decades ago, a jury was told not to watch accounts of a case on television, or to listen to such on the radio, or to read newspaper articles about the case. Juries could be sequestered – squirreled away out of sight and, theoretically, out of harmful evidence’s way – until the verdict was rendered and justice done.

But today, with a mobile phone, PDA or any one of literally hundreds of devices – some no larger than a credit card – one can ‘tweet’ (www.Twitter.com), one can post to your or someone else’s wall (www.Facebook.com), one can upload photos (www.flickr.com) or videos (www.YouTube.com) or post to one’s own blog (www.LegalBytes.com). All from the convenience of the palm of your hand, purse or jacket pocket. One can also surf, search, ask and obtain answers across the web, almost instantaneously, with the press of a few buttons or the wave of one’s fingers across a touch screen. The interactive two-way communication and searches for independent information is at odds with our jury system that limits the juror’s knowledge base for decision-making purposes to what’s in her or his head when they walk in along with the evidence that is presented and deemed admissible by the court. Everything else is off limits – at least for administering justice. Although not the subject of this two-part blog posting, Legal Bytes has also covered the growing issue of whether a mindless application of disqualification criteria makes sense simply because you have a ‘friend’ or someone is ‘following’ you among the other thousands or millions of individuals on some social media platform (See, Florida Judges Can’t Have Friends).

But now back to our story. Just this past December, the Judicial Conference Committee on Court Administration and Case Management issued its “Proposed Model Jury Instructions – The Use of Electronic Technology to Conduct Research on or Communicate about a Case”. I know this will surprise you, but the basic do’s and don’ts they proposed are:

• Thou shalt not undertake any independent research, use any outside reference works, dictionaries, surf the web, or use any digital or other means to try and get information about the case or anything related to the case.
• Thou shalt not communicate with anyone about the case – anyone – not even other jurors. No mobile phones, email, Blackberry, iPhone, SMS text messaging, tweets, blogging, chat rooms or social media platforms. None, nada, zilch, zero, null, never. Period.
• Thou shalt decide the case solely on the admissible evidence presented in the courtroom.

Sound familiar? While many of us recognize there are sophisticated rules and regulations established to ensure evidence is presented in a fair manner, consistent with the system of justice – protecting the rights of the accused and the accuser, the plaintiff and the defendant – jurors often are curious – curious about questions that aren’t asked or answered during the course of a trial. In motion pictures or television, we get to go behind the scenes. We can often see what the jury cannot. But real juries may not appreciate, under the constraints of a particular case, why some information is simply not available to them, some questions not permissible, some witnesses never called and some answers never provided. It’s far too tempting to try and find out and with today’s digital technology – well, it’s not that hard to do so – sometimes even believing one can escape detection when doing so.

So stay tuned. In the next installment of this post, Legal Bytes will take you on a brief tour of some court decisions over the last few years, starting from simple emails and online surfing by jurors, to jurors who post blogs in the middle of jury deliberations, to tweets before, during and after multimillion dollar civil trials. Yes, we even have jurors communicating to each other on Facebook during a trial. You just can’t make this up.

While the next installment is pending, if you need to know more – how social media can help or hurt your company in litigation – remember that Rimon has teams of litigators who not only know digital (e-)discovery, forensic evidence, security and other technology applicable to legal proceedings, but also know social media – increasingly relevant, for good or bad, in dispute proceedings. Need us to press your suit and avoid being taken to the cleaners? Contact me, Joseph I. Rosenbaum or any Rimon attorney with whom you regularly work and stay tuned for Part II – Jurors Behave, or We’ll Throw the Facebook at You!

Twitter keeps hitting the newswires—in this instance, in a matter involving freedom of the press. You might have heard from time to time, especially in high-profile or emotionally charged cases, about judges who have used their power to control proceedings by restricting the use of certain communications equipment and mechanisms from within their courtrooms (e.g., use of mobile phones, video recording equipment, etc.).

From Pennsylvania comes an order from a Dauphin County judge refusing to bar reporters from sending Tweets during the course of a public and high-profile trial. In response to a motion by the defendants counsel, Judge Lewis, in a brief order, noted that “. . . to impose the proposed restriction would be premature and that the restriction itself is overly broad.”

In this particular case, the defendants were concerned that reporters, using Twitter inside the courtroom, would broadcast witnesses testimony, which could then be read or seen by other witnesses who were yet to testify. While refusing to ban Twitter to reporters, the judge did order the witnesses to avoid reading or listening to reports concerning the trial.

As icing on the cake, our own Rimon lawyers, Tom McGough, Mark Tamburri and Tom Pohl, won the order on behalf of the Associated Press and Pittsburgh Post-Gazette. Yes, Virginia, there is a place for social media in jurisprudence.

If you remember, Twitter was also the subject of some controversy in Pittsburgh during the G20 Summit last year. In that case, involving freedom of speech, police in Pittsburgh arrested a man who was using Twitter to send messages about the movements of police officers as protests were unfolding. Although the police sought to charge the man with aiding an illegal protest, the man was broadcasting what was easily visible in plain sight.

While commercial cases often involve money or intellectual property rights, or rights of publicity or privacy, cases are emerging that involve fundamental Constitutional rights. The law will need to move quickly into the digital and social media age in order to keep up. Some courts and judges are doing just that!

Need to know more? Contact me, Joseph I. Rosenbaum, or any Rimon attorney with whom you regularly work.