No tweeting or status updates in court or deliberation rooms. Judges have been increasingly instructing juries to stay off Facebook and Twitter -- and don't use the Internet to investigate the cases, according to Joseph Rosenbaum, a Reed Smith partner, who chairs the firm's global Advertising Technology & Media Law practice.
Social media and access to search the Internet from anywhere have begun to change the rules in the U.S. court systems. County and city courts have begun to post rules outside each courtroom instructing people not only to turn off their mobile phone to eliminate the noise from obnoxious ringtones, but to keep people from writing blogs and posts.
Judges have started giving juries instructions to stay off social network sites. As jurors come on to the jury and during the trial, "judges have begun to tell them they cannot surf the Web, do their own independent research and communicate with others via social media," Rosenbaum says. "They took the 'don't communicate and don't read the newspapers' language we use to hear and moved it into the digital age."
Some courts have contemplated banning bringing mobile phones and personal computers into courtrooms, Rosenbaum says. While today a ruling might get thrown out of court if someone tweets or blogs during a trial, at least one state has considered taking criminal action against the jurors.
Rosenbaum says some judges find it useful to explain to the juror why they should not do their own research on the Internet. Previously, the judge would say "you can't communicate with other jurors, don't read the newspaper and don't discuss the case." Judges have begun to believe that if a juror understands why the rules exist, there is a greater likelihood they will comply.
Social media has changed the way the U.S. system of justice works, Rosenbaum says. "There are sophisticated rules of evidence designed to protect plaintiff, defendant, prosecutor and accused in situations where evidence needs to be introduced that's admissible, such as hearsay," he says. "The reality is people don't appreciate why these rules exist and that the rules are in place so that only admissible evidence is used to determine the outcome of the case."
The State Bar of Wisconsin points to a state court in Arkansas that overturned a $12 million verdict because a juror used Twitter to update his followers during the trial, including tweeting: "So, Jonathan, what did you do today?" Oh, nothing really. I just gave away TWELVE MILLION DOLLARS of somebody else's money!"
Jurors are not the only ones tapping into social media. Social media can damage the credibility of witnesses. Lawyers are increasingly using MySpace, Facebook and Twitter to gather evidence about cases and people testifying in them. For instance, a witness in a drunk-driving case could lose credibility if a video on YouTube surfaces of the person with an open can of beer getting into a car. Rosenbaum says society stands at the tip of the iceberg. The U.S. courts will continue to pay more attention to status updates, tweets and real-time streams on Google, Microsoft Bing and Yahoo.
The American Bar Association tried last year to address some issues introduced by social media. They focused on using social media in court cases for evidence, but not the issue of jurors using social media in the courtroom, according to a spokeswoman.