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The Internet, Social Media, and the Texas Rules of Civil Procedure

by Lauren M. Nelson, JD on January 18th, 2011

There are few things in American society that have not been affected by the Internet and the explosive popularity of social media websites like Facebook, Twitter, and MySpace. The never-ending availability of information and effortless access to communication has benefited everyone, in one way or another. The legal industry has been quick to adopt the new technology leading to increased effectiveness in the courtroom, enhanced knowledge and document sharing with clients and counsel, and providing access to information on the law, opposing parties, judges, and almost any topic one can imagine. However, while the legal field has benefited from these technologies, the Internet and social media have also created problems for judges trying to maintain the longstanding legal concept that the only evidence a jury should consider is that which they hear in the courtroom.

Increasingly, jurors have turned to the Internet and social media to find evidence and provide improper commentary on trials. In the past 10 years, over 90 verdicts have been challenged due to juror Internet use. Since January 2009, it is estimated that at least 21 cases have had a verdict overturned or new trial granted because of Internet misconduct by jurors. According to Reuters Legal, there were posts on Twitter from people describing themselves as prospective or seated jurors once every three minutes in the first two weeks of December 2010. While most were innocuous, others made direct comments on the guilt or innocence of the defendant in the case.

Recently in Florida, a judge allowed the attorneys for a defendant accused of rape and murder to subpoena the records of the jury foreperson’s Facebook account after she posted a message that the testimony from one witness was “Boring. Boring.” The foreperson’s “friends” then posted messages on the page discussing facts of the case that were not presented as evidence at trial. The defendant has moved for mistrial and sentencing in the case has been delayed until the records have been reviewed.

In early 2010, a Michigan woman serving as a juror in a criminal case posted a message on her Facebook account that she was “Actually excited for jury duty tomorrow. It’s gonna be fun to tell the defendant they’re guilty.” For violating her oath to not decide the case until hearing all of the facts, the juror was fined $250 and required to write a five page essay on the Sixth Amendment right to a fair trial.

In Nevada, a man convicted of sexually assaulting a minor was granted a new trial after it was discovered one of the jurors had researched the injuries typically suffered by young sexual assault victims.

In California, a man on the voir dire panel posted the following message on Twitter: “Guilty! He’s guilty! I can tell!” In later tweets, the man disclosed he was selected for the jury and that the defendant was convicted.

The Texas Supreme Court, in response to these types of cases, is making efforts to amend the Rules of Civil Procedure to provide specific instructions to jurors about the prohibitions of using the Internet and social media during trials. Justice Nathan Hecht stated that jurors “really need to know they can’t get on Facebook, can’t get on Wikipedia.”

The Court has proposed to amend Rule 284, which currently states the jury should be admonished not to be addressed by anyone connected with the case, to include an instruction that after the jury is selected, jurors must turn off all cell phones of other electronic devices and not use them while in the courtroom or during deliberations. The jurors would further be admonished that while serving as jurors, they must not post any information about the case on the Internet or search for any information outside of the courtroom, including on the Internet, to try to learn more about the case.

Rule 226a, which lists the instructions provided in writing and read aloud to the jury before deliberations, would be amended to include an instruction that discussing or investigating the case using an electronic device is prohibited. Judges would be permitted to give the following examples of prohibited conduct: communicating by phone, text message, email message, chat room, blog, or social networking websites such as Facebook, Twitter, or Myspace.

Supreme Court Advisory Committee Member Tracy Christopher, who is also a justice on the Houston 14th Court of Appeals, said the goal of the amendment was “to make it overall a lot clearer to the jury what they can and can’t do.” Public comment on the proposed amendments is open until March 4, 2011.

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