Can Fair Trials Exist with Social Media?
By Richard Holloway, J.D.
In previous blogs, we looked at how criminals are using social media and what they’re doing with the information they find online. We also discussed how law enforcement uses social media to track and ultimately prosecute criminals. Now let’s look at how social media is impacting the courtroom.
Judging the Judge and the Jurors
Jurors’ use of cell phones and social media in the courtroom has become a great concern. Use of the same by judges has also become a legal issue in recent years. In 2009, Florida determined that judges could not “friend” lawyers on social media sites such as Facebook. The next year, a Georgia judge resigned after an investigation revealed he exchanged Facebook messages with a defendant appearing before him in an on-going court case. Later that same year, a New York judge resigned following allegations that he updated his Facebook status while on the bench.
A survey of 508 federal judges taken in 2011 showed almost 6% experienced jurors using social media during deliberations or trial. The most common uses of social media by jurors: independent research on a trial matter; attempts to communicate directly with a trial participant; or dissemination of information about proceedings. Such actions have caused mistrials, overturned verdicts and have gotten jurors excused.
Court administrators and legislators are responding to this in a few ways. One effective approach is to provide social media guidelines for jurors before trials and jury deliberations begin. A University of Illinois Law Review article proposes doing more than confiscating smart phones, but instead hand down stiff punishment against jurors who violate the rules. It also advocates proactive measures for identifying rule breakers. There’s potential for damage to a defendant whose fate is being decided by an impartial juror.
Social Media’s Fair Trial
Social media can significantly impact the public’s “trust and confidence in the court system,” according to the Conference of Court Public Information Officers (CCPIO). The CCPIO released a survey asking judges and court personnel about social media and its affect on:
- Court proceedings
- Ethics and conduct for judges and court employees
- The courts’ ability to promote understanding and public trust in the judicial branch
The results showed an increasing percentage of judges and courts using social media and other new technologies. They see the benefit of using social media to improve the public’s perception of the courts.
Quincy District Court in Massachusetts is taking this concept a step further. They are working with an organization called OpenCourt, run by Boston’s NPR news station. OpenCourt is a pilot program experimenting with how “digital technologies can foster openness of the American courts with the idea that more transparent courts make for a stronger democracy.” A concern voiced by attorneys, however, is the increased likelihood of private conversations being overheard. Restraining order hearings and cases involving juveniles are excluded, as well as victim and witness information.
Courts and court administrators are dealing with the reality of new technologies impacting the courtroom. They’re trying to make social media work in ways that provide meaningful access of information by the public. However, courts must be even more alert in maintaining environments where defendants can still benefit from fair trials.
As is often the case with new technologies, the law struggles to keep up with those changes as it tries to balance the interests of justice with the interests of the public in fostering transparency and trust in our system.
Do you think social media should be allowed in the courtroom?
Image credit: Flickr/Prue_ski