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Mistrial by Twitter” A PRACTICAL FRAMEWORK FOR PREVENTING♦ “MISTRIAL BY TWITTER” INTRODUCTION ................................................................................. 376 I. BACKGROUND ............................................................................... 376 A. Description of Twitter and Its Users ................................ 376 B. Twitter in the News .......................................................... 378 C. Twitter in the Jury Box ..................................................... 380 II. TWITTER AND JURORS .................................................................. 383 A. Twitter and Juror Misconduct .......................................... 384 1. Contact Between Third Parties and Jurors ................. 384 2. Exposure by Jurors to Extra-judicial, Non-evidentiary Materials ................................................................... 385 3. Conduct by Jurors that Evinces Bias and Prejudgment386 B. Analysis of Responses to Tweeting Jurors ...................... 387 1. Oregon (Multnomah County) – An Instruction to Jurors Selected to Serve ............................................ 388 2. Michigan – A Statewide Court Rule Amendment ...... 389 3. Connecticut – A Statewide Study of the Juror’s “Life Cycle” ....................................................................... 390 4. Federal Courts – A Memo from the Top .................... 391 III. PROPOSALS ................................................................................. 393 A. The Judiciary Must Be Trained to Evaluate Possible Harmful Effects of Social Media and New Consumer Technologies in the Courtroom and Jury Box ................ 393 B. Jurors Must Be Properly Informed and Instructed During Jury Selection and During Trial ..................................... 395 1. When to Inform Jurors of Court’s Policies/Rules/Instructions........................................ 396 2. How to Instruct Jurors ............................................... 398 C. Court Systems Must Examine the Roles of Social Media and Consumer Technology During the “Life Cycle” of Jurors .............................................................................. 401 CONCLUSION ..................................................................................... 402 ♦ Permission is hereby granted for noncommercial reproduction of this Note in whole or in part for education or research purposes, including the making of multiple copies for classroom use, subject only to the condition that the name of the author, a complete citation, and this copyright notice and grant of permission be included in all copies. 375 376 CARDOZO ARTS & ENTERTAINMENT [Vol. 28:375 INTRODUCTION This Note examines the ways the social networking application Twitter has recently presented a particular problem in our jury system. Twitter is a relatively new techno-social phenomenon that pushes the boundaries of traditional rules concerning juror misconduct and technology in the courtrooms; it has been implicated as a means of undermining the systemic goal of fair trials by impartial jury. Because Twitter (or rather, a juror using Twitter to disclose or receive information about her case) could interfere with a verdict at any time from voir dire to post-judgment, “mistrial by Twitter” could potentially cause a tremendous waste of judicial resources.1 Part I of this Note provides a summary of recent events involving Twitter in the news and in the jury box, and an explanation of why Twitter presents a special problem regarding juries and the administration of justice. Part II examines how Twitter implicates juror misconduct and evaluates new rules that judicial, legislative, and administrative bodies across the country have implemented in response to cases of tweeting jurors. Part III then outlines a framework for mitigating the possibility of “mistrial by Twitter.” The judiciary must be trained to evaluate possible harmful effects of social media and new consumer technologies in the courtroom and jury box. Through this, judges may incorporate such knowledge into existing jurisdictional doctrine regarding juror misconduct and may properly exercise the broad discretion with which they are vested in resolving juror misconduct disputes. Additionally, jurors must be properly informed and instructed during jury selection and during trial in order to preserve their oath to uphold the constitutional rights of the parties and to render a fair verdict. Lastly, court systems must examine the roles of social media and consumer technology during the “life cycle” of jurors in order to implement proper policies regarding electronic devices in the courtroom. I. BACKGROUND A. Description of Twitter and Its Users The online application known as Twitter is commonly described as a “social networking and micro-blogging tool.”2 Twitter bills itself as “a free service that lets you keep in touch with people through the exchange of quick, frequent answers to one simple question: What’s 1 See, e.g., John Schwartz, As Jurors Turn to Google and Twitter, Mistrials Are Popping Up, N.Y. TIMES, Mar. 18, 2009, at A1, available at 2009 WLNR 5102471. 2 See, e.g., Revou.com, Twitter Clone Software, http://www.revou.com/ (last visited Aug. 21, 2010); Andrew Knowles, Uses For Twitter Social Network Tool: Micro-blogging Platform Offers New Solutions (Oct. 1, 2009), http://social-networking- tagging.suite101.com/article.cfm/uses_for_twitter_social_network_tool. 2010 MISTRIAL BY TWITTER 377 happening?”3 Twitter allows members (also called Tweeters) to send and read 140-character text messages known as “tweets.”4 The service publishes each author’s tweet in real time on an individual Twitter profile page and/or the author’s blog, and notifies other members who subscribe to, or in Twitter lingo, “follow” the author’s tweet feed.5 Users can send and read tweets using the Twitter web site, mobile device software applications, mobile phone text messaging services, or other third-party applications such as blogging software.6 Thus, members can instantly transmit their immediate thoughts, status, or whereabouts to any number of followers.7 Members and non-members can visit the Twitter home page and search for tweets that mention particular topics or keywords. Since any person, business, or organization can create a Twitter account by choosing a user name and completing a simple online form,8 the Twitter universe of content is vast and ever-changing. Although Twitter, Inc., does not report the number of Twitter users, several reports and other evidence corroborate the finding that Twitter usage has grown tremendously since its inception in 2006 and now has a member base numbering in the millions.9 As of September 1, 2010, a ranking of the 100 most-followed Tweeters included entertainment celebrities, news organizations and media outlets, businesses, politicians, writers, Twitter associates, the White House, and 10 Downing Street.10 Twitter, Inc., does not publish demographic data on 3 This message is displayed on every user’s profile page. See, e.g., Benjamin N. Cardozo (cardozolaw) on Twitter, http://twitter.com/cardozolaw (last visited Aug. 21, 2010). Note that the “one simple question” was “[w]hat are you doing?” until November 2009. See Twitter Blog: What's Happening? (Nov. 19, 2009), http://blog.twitter.com/2009/11/whats-happening.html. 4 See, e.g., Methodshop.com, News, Reviews, and How-To’s, How to Explain Twitter to Your Grandma, http://www.methodshop.com/gadgets/tutorials/twitter-explained/index.shtml (last visited Aug. 21, 2010). 5 Id. 6 Twitter.com, What Twitter Does, http://twitter.com/about (last visited Aug. 21, 2010). 7 Users can manage and limit who follows their tweets using third-party applications or Twitter functions. See Twitter Support: Following Limits and Best Practices, http://help.twitter.com/forums/10711/entries/68916 (last visited Aug. 21, 2010); Dainis Graveris, 27 Twitter Tools To Help You Find And Manage Followers (May 10, 2009), http://www.1stwebdesigner.com/development/27-twitter-tools-to-help-you-find-and-manage- followers/. 8 Twitter.com, Create an Account, https://twitter.com/signup (last visited Aug. 21, 2010). 9 Twittercounter.com tracks well over 4,600,000 unique Twitter accounts to compile its daily rankings of the most-watched Twitter feeds. See Twittercounter.com, Top Twitter Users, http://twittercounter.com/pages/100 (last visited Aug. 21, 2010). See also Nielsen Wire, Twitter’s Tweet Smell Of Success (Mar. 19, 2009), http://blog.nielsen.com/nielsenwire/online_mobile/twitters-tweet-smell-of-success/; Nielsen Wire, Twitter Grows 1,444% Over Last Year; Time on Site Up 175% (June 22, 2009), http://blog.nielsen.com/nielsenwire/nielsen-news/twitter-grows-1444-over-last-year-time-on-site- up-175/; Nielsen Wire, Social Media Stats: Myspace Music Growing, Twitter’s Big Move (July 17, 2009), http://blog.nielsen.com/nielsenwire/online_mobile/social-media-stats-myspace-music- growing-twitters-big-move/. 10 Twittercounter.com, supra note 9. See entertainment celebrities (to name a few, Britney Spears, Lady Gaga, Oprah Winfrey, and Ashton Kutcher, each of whom have from four million to nearly six million followers as of September 1, 2010), news organizations and media outlets (The New York Times, CNN, Time Magazine), businesses (Whole Foods Market, Zappos.com, 378 CARDOZO ARTS & ENTERTAINMENT [Vol. 28:375 Tweeters, but recent search shows that Tweeters (or at least, their online personas) can be grandmothers,11 math teachers,12 small businesses,13 sheriff departments,14 and Joe Sixpacks.15 While
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