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Bar News - December 18, 2009

Opinion: Tweets, Internet Research and a Fair Trial: A Rules Proposal


Charles G. Douglas
"Don’t discuss this case or read anything about it" has been a trial judge mantra to jurors every night they are sent home. In the age of the Internet, this admonition is woefully inadequate.

In Merrimack County this year in a sexual assault trial involving a nine-year-old victim one juror caused a mistrial because of his show and tell project on the Internet. Juror Paul Christiansen of Danbury did Internet research on the defendant and found that the accused was a convicted sex offender. Such information – and more – is readily available online.

The juror shared his research news with his fellow jurors, leading to a mistrial and a criminal contempt citation against the juror by Judge Nicolosi. On October 10, 2009, Christiansen, who was unrepentant, paid $1,200 for the cost of two days of the jury. The accused criminal defendant later pled guilty to a lighter sentence to spare the child from a second trial. Justice was not done thanks to curiosity and the internet.

Whether jurors like it or not, our system is based upon due process and a fair trial. Our judges serve as filters and gatekeepers and are not part of a conspiracy to let off the guilty. They are upholding the state and federal constitutions.

There are time-tested rules for relevance and exclusion of illegal searches, coerced confessions and undue prejudice, such as Rule of Evidence 403. But inadmissible hearsay, stale convictions and juvenile incidents may now be unearthed with relative ease by keyboard commandos. Google Earth will show you the accident scene if there is no view.

The problem is not in any way limited to New Hampshire. In March, a federal drug trial in Florida was derailed when nine jurors admitted they had been doing research on the Internet. A mistrial was declared after an eight-week trial.

A corruption trial in Pennsylvania was almost derailed when lawyers discovered that jurors had been posting updates on their Facebook pages. The defendant was convicted, but lawyers are already laying groundwork for an appeal based on the postings.

Also in March, an Arkansas judge turned down a request for a new trial after a building materials company and its owner appealed a $12.6 million verdict against them, alleging that during the trial a juror posted Twitter messages that showed bias. And in England, a woman reportedly was dismissed from a jury after she asked people on Facebook how she should vote.

Talking about the case with a neighbor is obviously wrong. Sending out a Tweet? Same thing. "People tend to forget that e-mail, Twittering, updating your status on Facebook is also speech," Professor Julie Young at Thomas Jefferson School of Law in San Diego said recently. "There’s an impersonality about it because it’s a one-way communication – but it is a communication."

Typing is the new Internet-age speech, so jurors must understand that even after trial what they Tweet or put on Facebook may cause a mistrial. Sending out a tweet or Facebook message invites people to respond, which could lead to outside influences on the juror. "Wow, didn’t know he had confessed or I would have voted differently" is the kind of Twitter or Facebook update that could lead to a mistrial.

In California in September, a judge required jurors to sign declarations attesting that they will not use "personal electronic and media devices" to research or communicate about any aspect of the case. That includes computers, cell phones and laptops. Jurors will have to sign the declarations, made under penalty of perjury, both before and after they serve.

Michigan has proposed a rule that New Hampshire’s courts should consider. Its text says that the courts shall specifically instruct jurors that they shall not:
[u]se a computer, cellular phone, or other electronic device with communication capabilities to obtain information about the case when they are not in court. As used in this subsection, information about the case includes, but is not limited to, the following:

(i) seeking information about the criminal record of a party or witness;

(ii) reviewing news accounts of the case;

(iii) conducting research on any topics raised or testimony offered by any witness;

(iv) researching any other information the juror might think would be helpful, such as an aerial map of the scene.

Any juror who observes or has reason to believe that another juror has used an electronic device in violation of this rule shall immediately inform the court of the violation.
This, or a similar rule, should be adopted here or we will face more mistrials due to juror Internet misconduct.

Chuck Douglas is a former Superior Court and Supreme Court justice now practicing law in Concord.

Opinions in Bar News
Unless otherwise indicated, opinions expressed in letters or commentaries published in Bar News are solely those of the authors, and do not necessarily reflect the policies of the New Hampshire Bar Association Board of Governors, the Bar News Editorial Advisory Board or the Bar Association staff.

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