Saturday, July 4, 2009

For jurors in Michigan, no tweeting (or texting or Googling) allowed

Tresa Baldas
July 1, 2009

Call it the silencing of the tweets.

The Michigan Supreme Court has laid the hammer down on gadget-happy jurors in banning all electronic communications by jurors during trial, including tweets on Twitter, text messages and Google searches.

The ruling, which takes effect Sept. 1, will require Michigan judges for the first time to instruct jurors not to use any handheld device, such as iPhones or Blackberrys, while in the jury box or during deliberations.

The state's high court issued the new rule on Tuesday in response to prosecutors' complaints that jurors were getting distracted by their cell phones, smart phones and PDAs, in some cases texting during trial or digging up their own information about a case and potentially tainting the judicial process.

Wouldn't common sense suggest that's wrong? "I don't think jurors go out and Google stuff thinking it's wrong. Sometimes it just doesn't click," said Charles Koop, immediate past president of the Prosecuting Attorneys Association of Michigan, which pushed for the new rule. "I think it brings home to the conscientious jurors -- which most jurors are -- that I'm not supposed to do this.' "

The new rule also helps older judges, who might not be tech-savvy, stop jurors from doing things in their courtroom that they are unaware of, said Koop, prosecuting attorney in Antrim County, Mich. "Judges of an older age may not be in tune as much as younger judges as to what's going on out there," Koop said, adding the constantly evolving PDAs are especially problematic for the courts. "It's a new technology. We're playing catch-up."

Michigan's new rule follows a wave of recent cases in which jurors have blogged, posted Tweets or sent text messages during trials, infuriating judges and triggering mistrials.

In Florida, Miami-Dade Circuit Court Judge Scott Silverman in May declared a mistrial in a civil fraud case after discovering a witness -- a company executive -- was texting his boss on the stand during a side bar conference. "I never had this happen before," Silverman stated. "This is completely outrageous."

On the flipside, an Arkansas judge in April ruled that a juror's Twitter postings during a trial won't affect a $12.6 million judgment issued against a buildings products company. Lawyers for that company had argued that the juror's Tweets during trial showed he was biased against the company, including one that said, "just gave away TWELVE MILLION DOLLARS of somebody else's money." But the judge upheld the verdict, finding that the tweets were in bad taste but not improper.

A Pennsylvania judge delivered a similar blow recently to defense lawyers in the corruption trial of a former state senator who requested a mistrial because a juror posted updates about the case on Twitter and Facebook, telling readers that a "big announcement" was coming. The judge, however, let the deliberations continue and a guilty verdict was issued. An appeal is in the works.

Looks like more states should consider following Michigan's suit, said Josh Marquis, who sits on the Board of Directors for the National District Attorney's Association and believes technology is wreaking havoc on the justice system.

"The potential for jury tampering is unbelievable. All you have to know is a person's cell number," said Marquis, district attorney in Clatsop County, Oregon, who has seen text messages and Google searches by jurors taint his own cases.

"One thing that will almost always cause a mistrial is extrinsic material coming into the jury room. In the pre-electronic age, that meant a dictionary or encyclopedia," Marquis said.

Those days are over. Now there's Google, Twitter, Facebook and a host of other cyberspace message boards for jurors to play on, and potentially kill a case.

"It almost invites people to do extrinsic research," Marquis said of the Internet and hand-held technology. "The problem is -- technology has far outpaced the court rules."

Next week, Marquis is going to the annual NDAA conference in Florida. He is counting on his Michigan colleagues to talk about their new rule, and the directive judges are now under to tell jurors that no electronic communications are allowed during trial. "The first thing I'm going to do is call them and say, 'bring this up,'" Marquis said.

According to the National Center for State Courts, a number of states have grappled with the problem of allowing jurors to bring cell phones to the courtroom. A recent questionnaire sent to court administrators across the country showed that many courts are addressing the problem of potential juror misconduct through hand-held devices.

For example, courts in Ramsey County, Minn. recently issued a new cell phone policy that prohibits jurors from brining any wireless communication device to court after two mistrials were declared when jurors used cell phones during deliberation against the court's order.

New Jersey, however, allows jurors to bring cell phones to court, but they must be turned off during trial. Cumberland County, Penn. has a similar phone policy. In Malheur County, Ore., jurors are not allowed to bring cell phones to court at all.

"This has been a hot topic," said Gregory Hurley, an analyst with the NCSC who studies trends in the courts.. "It's a funny balance that a court has to do. On the one hand, common sense says, 'get all the cell phones out of there. Sanitize the environment." But in this day and age, with people who have kids, you have to have a little compassion for the jurors."

He added: "If you want to take the cell phones out, you have to be extra careful to have phones around for people to use."

Tresa Baldas can be reached at