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New Rules for Juror Internet Use in Florida Criminal Cases

The Florida Supreme Court issued an opinion last Thursday approving new standard jury instruction 1.001 (Introduction) which, according to the Comment, deals with jurors’ “communication with other and outside research.”

If there is any question as to the serious nature of juror internet use — either tweeting/Facebooking about service or researching issues in the case — that doubt should be resolved since the prohibition rule is now the first thing jurors hear in a case.

The new set of rules was enough of a landmark that the ABA Journal noted the development.  The approval of these internet rules however, went without comment in the opinion.

The May 17 opinion is In Re Standard Jury Instructions in Criminal Cases – Report No. 2011-03.

The new rule is:

1.001 INTRODUCTION

To be given when jurors are in courtroom, prior to voir dire. In order to have a fair and lawful trial, there are rules that all jurors must follow. A basic rule is that jurors must decide the case only on the evidence presented in the courtroom. You must not communicate with anyone, including friends and family members, about this case, the people and places involved, or your jury service. You must not disclose your thoughts about this case or ask for advice on how to decide this case.

I want to stress that this rule means you must not use electronic devices or computers to communicate about this case, including tweeting, texting, blogging, e-mailing, posting information on a website or chat room, or any other means at all. Do not send or accept any messages to or from anyone about this case or your jury service.

You must not do any research or look up words, names, [maps], or anything else that may have anything to do with this case. This includes reading newspapers, watching television or using a computer, cell phone, the Internet, any electronic device, or any other means at all, to get information related to this case or the people and places involved in this case. This applies whether you are in the courthouse, at home, or anywhere else.

All of us are depending on you to follow these rules, so that there will be a fair and lawful resolution to this case. Unlike questions that you may be allowed to ask in court, which will be answered in court in the presence of the judge and the parties, if you investigate, research or make inquiries on your own outside of the courtroom, the trial judge has no way to assure they are proper and relevant to the case. The parties likewise have no opportunity to dispute the accuracy of what you find or to provide rebuttal evidence to it. That is contrary to our judicial system, which assures every party the right to ask questions about and rebut the evidence being considered against it and to present argument with respect to that evidence. Non-court inquiries and investigations unfairly and improperly prevent the parties from having that opportunity our judicial system promises. If you become aware of any violation of these instructions or any other instruction I give in this case, you must tell me by giving a note to the bailiff.

Comment

The portion of this instruction dealing with communication with others and outside research may need to be modified to include other specified means of communication or research as technology develops. This instruction was adopted in 2012.

Note, also, the new qualifications instructions, found on page 24-25 of the opinion:

QUALIFICATIONS INSTRUCTION

Many of you have cell phones, computers, and other electronic devices. Even though you have not yet been selected as a juror, there are some strict rules that you must follow about using your cell phones, electronic devices and computers. You must not use any device to search the Internet or to find out anything related to any cases in the courthouse.

Between now and when you have been discharged from jury duty by the judge, you must not provide or receive any information about your jury service to anyone, including friends, co-workers, and family members. You may tell those who need to know where you are that you have been called for jury duty. If you are picked for a jury, you may tell people that you have been picked for a jury and how long the case may take. However, you must not give anyone any information about the case itself or the people involved in the case. You must also warn people not to try to say anything to you or write to you about your jury service or the case. This includes face-to-face, phone or computer communications.

In this age of electronic communication, I want to stress that you must not use electronic devices or computers to talk about this case, including tweeting, texting, blogging, e-mailing, posting information on a website or chat room, or any other means at all. Do not send or accept any messages, including e-mail and text messages, about your jury service. You must not disclose your thoughts about your jury service or ask for advice on how to decide any case.

After you are called to the courtroom, the judge will give you specific instructions about these matters. A judge will tell you when you are released from this instruction. All of us are depending on you to follow these rules, so that there will be a fair and lawful resolution of every case.

NOTE ON USE
This instruction should be given in addition to and at the conclusion of the instructions normally given to the prospective jurors. The portion of this instruction dealing with communication with others and outside research may need to be modified to include other specified means of communication or research as technology develops. This instruction was adopted in 2012.

 

2012 Small Claims Court Clinic

Slightly off topic from Internet/legal issues, the Palm Beach Bar Association and the Palm Beach County Library, as part of the 2012 Law Week, hosted the 2012 Small Claims Court Clinic this week to assist the community by providing the in’s and out’s of court claims under $5000.  If you missed the presentation, or if you need some of the information discussed, the powerpoint is here.

Nevada Supreme Court Explains Admissibility Standards for IM / Text Messages

The criminal case of Kevin Rodriguez v. State of Nevada is one of three recent cases nationwide which discusses the admissibility of text messages in trial.

In Rodriguez, a victim was attacked, robbed, and her cell phone was taken.  Thereafter, twelve text messages were sent from the victim’s phone.  The case was brought against two defendants who were later apprehended in possession of the phone (which also had a picture of them in the phone which was taken after the assault).

Some quotes from the opinion:

* “Text messages offer new analytical challenges when courts consider admissibility.  However, those challenges do not require a deviation from basic evidentiary rules…”

* A person cannot be identified as the author of a text message solely on the evidence that the text came from that person’s phone.  Some additional evidence is required to authenticate.

* Circumstantial evidence corroborating the sender’s identity may include the context or content of the messages…

* Proponent of the evidence must explain the purpose for which the text message is being offered and provide sufficient direct or circumstantial corroborating evidence of authorship in order to authenticate…

* Once admitted, opponent may rebut authentication and it is for the jury to decide…

What Are Your Jurors Doing on the Internet?

A persistent problem for the jury system has been jurors using the Internet during jury selection and trial.  Despite media coverage, the problem continues (even internationally).

But there may be a positive side of this issue: jurors are, like the rest of us, often tied to the internet or smartphones.  Perhaps their use of the internet PRIOR to their involvement in trial might tell lawyers something about potential jurors.  A better jury means a better trial.

http://igetlit.com/2011/03/internet-jurors/

In early 2009, I wrote an article about how to use the internet to research jurors during voir dire.  This proved helpful as a practical trial technique and was (independent from my article) a practice quickly assumed by other lawyers.

But, while the voir dire data-mining effort is useful, it remains very Web 1.0.  You are using the internet to gain information.  Great, but that research method is too linear.  Why?  The jurors’ practical use of the internet may be as valuable, if not more, than their factual background information.  Just ask — most of us are quite willing to discuss our internet habits.  In fact, it might make for some compelling voir dire discussion (tailored to the case, court’s discretion, and time limits).

If you follow the 2009 article, you may stumble across an public Facebook page or an interesting Twitter feed in order to detect a better vantage of the juror’s personality.  But openly exploring with jurors how they use the internet, what connections they make (news?  personal?  purchases?), and where they go may tell the lawyer a lot more about the person, how they think, their attention span, their methods of obtaining/retaining information, etc.  That’s a Web 2.0 approach (to borrow a tiring phrase), if not more contemporary — and you do not have to use the internet.  Just ask good questions.

Check out the December 2011 article from the Palm Beach Bar Bulletin, “What Are Your Jurors Doing on the Internet?”  It may lead you to some new voir dire approaches.

CT Judge OK’s Facebook Joking Juror & Juror Facebook-friending

On October 5, 2011, a Connecticut federal court judge declined to order a new trial after the defendant in a tax evasion case learned that  (a) “Juror X” was posting on Facebook during trial that he “may get 2 hang someone… can’t wait” and “Guinness for lunch break” and (b) “Juror X” was Facebook-friending “Juror Y.”  

During an in camera evidentiary hearing, Juror X stated that the “hanging” comment was simply a joke and that he kept an open mind throughout the trial.  Likewise, he acknowledged that he Facebook-friended Juror Y but that they never have improper communications during the trial.

The order in United States v. Stavros M. Ganias is here.