From the Sidebar - Trial, Litigation and The Practice of Law

By Hayes Hunt and Michael Zabel

You want to introduce an active webpage into evidence.  Now what?

Courts generally agree that the contents of a website are admissible evidence, so long as those contents are properly authenticated and are not in violation of any hearsay rule.  In recent years, the most common way of presenting web content has been through printouts of the particular web page.  However, jurors expect information from the internet the same way they use the internet - with a live connection. 

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By Hayes Hunt and Brian Kint

Actor Steve Martin, while on jury duty, tweeted the following to 380,000 fans:  “REPORT FROM JURY DUTY: defendant looks like a murderer. GUILTY. Waiting for opening remarks.”  A few hours later, Martin added, “REPORT FROM JURY DUTY: Other jurors are stupid. First, they don't believe in ‘hexes.’ Plus, they want me to put my magazines away.”

Despite Martin’s levity, the federal bench has decided that juror use of social media is not funny.  The Federal Judicial Conference has issued new jury instructions that specifically address the issue.  After warning that the jurors cannot consult any outside materials and must decide the case based solely on the evidence presented, the new instructions go on to read, in pertinent, part:

[Y]ou may not communicate with anyone about the case…on Twitter, through any blog or website, including Facebook, Google+, My Space, LinkedIn, or YouTube...I expect you will inform me as soon as you become aware of another juror’s violation of these instructions.

For many of us the daily use of social media has become blasé.  But using it in the courtroom can have real consequences.  For example, less than a year ago, the Arkansas Supreme Court overturned a capital murder conviction and death sentence, because the trial court judge had failed to declare a mistrial even though one of the jurors posted Twitter updates throughout the course of the trial. 

It is no surprise that the courts would strongly resist the relentless push of social media into our daily lives.  After all, the legitimacy of the judicial system depends in some measure on the secrecy of juror deliberations.  The jury announces its verdict with no commentary or rationale.  Yet, for the most part, we accept the decision both institutionally and societally. 

For such a system to maintain its legitimacy, the process by which the jury comes to its conclusions must be either (a) above reproach, or (b) secret.  The former is too ideal, but the latter is much more practical.  If social media were allowed to permeate the process of jury deliberations, the decision-making process itself would be open to scrutiny.  (See FRE 606(b)  exceptions).  Finality would be rare and collateral attack would become the norm. 

The updated jury instructions attempt to maintain legitimacy, especially if Steve Martin is a juror.