The law sometimes can't keep up with changes in technology. Trying
to apply the law to the relatively new technology of social media has
proven to be a challenge for judges and lawyers in many ways.
We've commented here before about how parties will try to use an opponent's
comments or postings on social media against them. However, social media
doesn't just have legal implications for the people involved in lawsuits.
It can create turmoil over people called for jury duty too.
Judges in Florida now warn jurors not to use social media to discuss cases
they are hearing with family, friends, or the public. Jurors are also
warned not to use social media or the internet to do their own investigations
about the facts. That's because evidence available from these sources
are not screened for accuracy. It can be misleading or dead wrong, and
can lead even a well-intentioned juror astray.
Media reports are now trickling in about jurors who have caused mistrials
because they failed to resist the temptation to do these things. Mistrials
usually result in a "do over" of entire trials, and they are
enormously costly to the court system and parties involved. Jurors who
break these rules and abort a trial in progress may find themselves in
hot water with a judge too. Jurors can actually be fined or held in contempt
for misbehaving that way.
Off-the-record investigations are not the only potential problem involving
jurors. Evidence of juror bias can raise its head through social media
as well. In fact, some lawyers have begun researching social media posts
of people chosen for jury duty to find evidence of partiality. Lawyers
trying a police brutality case might look for a potential juror's
comments about the events in Ferguson, Missouri. A lawyer defending an
oil company might check for comments about the Deepwater Horizon oil spill
or similar events.
There is nothing wrong with this type of research. Both parties to a legal
dispute are entitled to jurors who will not be influenced by bias or prejudice.
Potential jurors may find it a little creepy that lawyers are reading
their old posts or tweets, but they can hardly complain if they've
chosen to announce their views in a public forum.
Of course, jurors have the right to their own opinions. They also have
rights of free expression when it comes to their opinions. No one could
fault a potential jury member for expressing views on an issue long before
they get a jury summons.
The one thing potential jurors must do, however, is tell the truth about
their biases and views when asked. A jury candidate who denies bias can
cause enormous disruption if investigators find statements in cyberspace
revealing bias afterward. At a time when more and more of people's
comments leave an electronic paper trail, it's more important than
ever that people be straight about their views. Candor is just as important
for potential jurors as it is for people testifying on the witness stand.