Much of the news these days about social media and the law revolves around jurors’ improper use of social platforms. There have already been two reported cases in 2012 that dealt with potential misconduct by jurors.
In People v. Wilson, a New York appellate court upheld the trial court’s refusal to set aside a verdict based on a juror’s Facebook posting that simply informed her friends that she was serving on a jury:
The court conducted a thorough hearing, and we find no basis for disturbing its credibility determinations. The juror made Facebook postings that merely advised her friends that she was on a jury, but did not discuss the case in any way. Unfortunately, some of her friends made foolish replies relating to trials in general that defendant characterizes as “inflammatory.” However, the juror testified unequivocally that she was not affected by these comments, that she did not discuss the case with anyone during the trial, and that she had decided the case impartially, based only on the evidence.
People v. Wilson, — N.Y.S.2d —, 2012 WL 787553, at *2 (N.Y.A.D. 1 Dept.) (March 13, 2012). The Wilson court got it right; it should not be “misconduct” to simply post or tweet: “Hey, I’m on jury duty!” The case is interesting, however, because it points out the impact that comments may have. It appears the defense argued that the inflammatory comments in response to the innocuous update might have resulted in misconduct. In this case, the juror confirmed that the comments did not affect her partiality. But I imagine that, more and more, we will see “misconduct” cases based not only on what the juror said but what the juror’s friends or followers said in response.
In another recent case, Khoury v. ConAgra Foods, Inc., the Missouri Court of Appeals upheld the trial court’s decision to dismiss an empanelled juror. The trial court characterized its decision to remove the juror as “a very close call” but, ultimately, ConAgra was able to convince the trial court and the Missouri Court of Appeals that dismissal was appropriate; ”counsel for ConAgra informed the trial court that counsel had found, separate and apart from litigation history information, that Juror Piedimonte had a Facebook page and was ‘a prolific poster for anti-corporation, organic foods.’ ConAgra moved for a mistrial or, in the alternative, to strike Juror Piedimonte because of his alleged misconduct during voir dire, claiming he intentionally failed to disclose information that affected his ability to be a fair and impartial juror.” Khoury v. ConAgra Foods, Inc., 2012 WL 694827, at *1 (Mo. Ct. App. March 6, 2012).
Subsequent to the jury being empanelled, but prior to opening statements, ConAgra presented the trial court with copies of material from Juror Piedimonte’s Facebook page and personal blog allegedly relating to “corporate criminals, credit rating agencies, economic warfare, socialism,” and moved for a mistrial or, in the alternative, to strike Juror Piedimonte. The trial court conducted an examination of Juror Piedimonte to determine the existence of his alleged bias toward corporations.
Id. at *7. Both the trial court and the appellate court recognized that ”[r]eplacement of a juror with an alternate is an appropriate remedy when there is a possibility of bias.” Id. at 8. Accordingly, replacement of this particular juror was appropriate given the circumstances.
The Khoury case is interesting because it doesn’t directly deal with misconduct by the juror during the trial. Rather, ConAgra used the juror’s Facebook page and blog to show that the juror had been less than truthful during voir dire and that he could not be impartial. This was enough to get the juror knocked off the panel (although it was a very close call).
Jurors and social media are often like oil and water; they just don’t mix well. I am glad that the Wilson court reached the right result. There is no harm from a juror saying “I’m currently serving.” Other courts should follow this example.
The Khoury decision is dicier. I’m sure that, with thorough search efforts and techniques, any lawyer could come up with enough “impeachment” evidence to successfully challenge a juror during voir dire (or, as was the case here, point out that the juror was less than truthful during voir dire — do you remember what your status update was two years ago?). Fortunately, the court(s) recognized that this was a “close” call. Courts should be hesitant to disqualify jurors based on general statements made on social media sites, particularly where the statements pre-date or are unrelated to the trial for which the juror may sit. In Khoury, the facts were unique and the court(s) recognized that. Hopefully, other courts won’t fall further down this slippery slope.
