Social media websites are virtual meeting places where anyone can share information, pictures, and even videos about themselves and others. Even if you've never visited one, you've surely heard about some. Twitter and Facebook are two popular ones, but there are others.

They're used by millions of people just about everywhere, from school to work to restaurants. Now they're creeping into someplace they probably shouldn't be.

In Court?!

Believe it or not, yes, social networking sites are being used by people while they're in court, during criminal and non-criminal (or "civil") trials. For example, in January 2010, there was a high-profile criminal case in Pennsylvania. A former state representative, Mike Veon, and three of his aides were charged with public corruption.

The judge gave reporters covering the case permission to send out short reports about the case over Twitter. But they weren't the only ones Tweeting. Stephen Keefer, who headed Veon's information technology department and a defendant in the corruption trial, was Tweeting from the courtroom.

What's the Big Deal?

At first blush, there isn't a big deal, really. There's nothing wrong with reporters giving some Tweets on the details about of what they've seen and heard in the courtroom. And so long as it doesn't disrupt the trial, what's wrong with a defendant tweeting - even if the rest of his life at stake while he's tweeting.

The real problems crop up when jurors use Twitter and other social media sites or web tools during the trial. Right now you're saying, "C'mon, that's not going on." Yes, it is. For instance:

  • In Arkansas, a juror was Tweeting during jury deliberations (that's when the jury decides who wins the case). It was a civil case involving an investment company's mismanagement of investor's funds. The jury awarded the investors $12.6 million. But it may not stand. Defense attorneys filed a motion for a mistrial asking that the judgment be thrown out because the juror's Tweets showed that he was biased against the company and had done outside research over the internet
  • In Florida, a mistrial was declared in a criminal case after a defendant was convicted of drug-related crimes. Several jurors were running Google searches about the defendant, looking up definitions of legal terms, and discovered evidence that they weren't supposed to know about (it had been excluded from the trial)
  • Again in Pennsylvania, there was a motion for a mistrial in criminal case against Vincent Fumo, a former state senator. He claimed the trial was unfair because a juror was posting updates on the case Twitter and Facebook. The motion was denied, but he plans an appeal based on the juror's activities

All these cases happened in 2009. Early in 2010, and no doubt because of cases like these, a model jury instruction was drafted for use in federal courts. Essentially it tells jurors they're not allowed to do outside research over the web or communicate through "e-mail, Blackberry, iPhone, text messaging, or on Twitter," among others.

Clear Danger

These examples and the jury instruction show the dangers of jurors using Twitter or other web tools. Jurors are supposed to consider and weigh only the evidence they hear and see in court. Information from the outside may make a trial unfair.

There's a good argument that any use of the web or electronic devices in court should be barred. For instance, what happens if a juror reads a reporter's Tweet containing her opinion about the case? What if a defendant's Facebook page shows things that aren't favorable to his case?

Judges, as well as attorneys and their clients, should be aware of the dangers. Judges should consider giving a jury instruction about the problem, and attorneys should ask the court to do so before trial. Also, attorneys should do as Keefer's lawyer did: Warn their clients not to Twitter during trial.

The hallmark of the US legal system is fairness. The use of social media and other tools jeopardizes that fairness, and it shouldn't be allowed or tolerated.

Questions For Your Attorney

  • Can a juror get into legal trouble for using Twitter or the web during a trial?
  • Does a criminal defendant get set free if there's a mistrial because a juror used social media websites during the trial?
  • Legally can a judge ban everyone from bringing phones and digital devices into her courtroom during a trial?

Tagged as: Criminal Law, social media, criminal lawyer