MARCH 26, 2009

Twitter Mistrials On The Rise?

Since the days of Matlock and Perry Mason, the trial system in our country has remained largely unchanged. Today, we still have courtrooms with judges, lawyers, and a jury of our peers. However the legal institution is now facing new threats, with technology changing the way our society seeks and pushes information.

Last week I read a New York Times article that reveals a recent rash of mistrials due to jurors accessing the Internet either to seek information on the trial or spread information about their involvement.

The article describes several examples where a mistrial was called, or an appeal was filed, based on such actions. Take the story of Stoam Holdings, a company that was being sued for mismanaging investors’ funds. Jonathan Powell, a juror in the case, posted messages on his Twitter account that included, “So, Jonathan, what did you do today? Oh, nothing really. I just gave away TWELVE MILLION DOLLARS of somebody else’s money!”and, “Oh, and nobody buy Stoam. It’s bad mojo, and they’ll probably cease to exist, now that their wallet is $12M lighter.”

Once again I sought the opinion of my colleague Peter (who was in the process of deleting his Twitter account) on this topic, and we had a lot to say about it:

Peter: This is why Twitter makes me furious! People don’t use Twitter to actually read and care about what other people say. They post messages to get others to read them, and everyone panders to everyone else’s need for attention. Powell thought he was being cool with that message, that he would get everyone’s attention with a statement like that. It’s really sad.

Me: You are absolutely right, I think the world of blogging, Facebook, and Twitter. They have given society an outlet to grow their own egos. It is hard to tell a society that has embraced the idea of total transparency in their lives to be discreet with something that could be a sensational hit on their blog or Twitter feed. We also live in a world where people can seek answers instantly with the help of the Internet. Imagine being a juror in a trial without access to Wikipedia to answer that question he has about a theory. That juror will be tempted to find out the answer on his own at home when they go home for the day.

Peter: Yeah, people don’t want to be fed information now that we can find information on our own and arrive at our own opinions.

Me: True, but unfortunately when someone looks up information online, it’s not subject to cross-examination and the discovery rules that make the trial system fair and just. I’ll be afraid of the day law firms start trying to influence juries by planting information on Wikipedia and Google. I’m reading this article again and I bet this Powell guy was excited to say something more interesting than his daily routine as a photo manager at Wal-Mart.

Peter: This is why I think there’s no point to even have Twitter - it offends me deeply and that’s why I am deleting my account.

So where do courtrooms go from here? I am amazed that some courtrooms are allowing jurors to have their cell phones and Blackberry devices in the courtroom. Not only would I encourage stronger enforcement of keeping them out of the courtroom, I would also encourage judges to be more explicit about jurors going online and the possible consequences of their actions. Deliberations, a blog about trials and juries, has a post that describes a simple way that lawyers and judges can guide today’s tech-savvy jurors.

I agree with the post that while the court system hasn’t changed, the society it serves has. The justice system needs to pay attention to that fact and adapt, or else we may start seeing more of these “Twitter” mistrials.