Virginia Republican Party Chair John Whitbeck joins us in studio, and we get an update on Congress and D.C.'s "Death with Dignity" bill from D.C. Del. Eleanor Holmes Norton.
Trial-by-jury is a cornerstone of the American justice system. But social media and Internet-enabled devices are creating new challenges for tradition-bound courts: juror Tweets and Facebook postings have already upended high-profile trials across the country. We speak with two judges about how technology is forcing courts to rethink the way they counsel jurors and conduct proceedings.
- Herbert B. Dixon Associate Judge, Superior Court of the District of Columbia; Technology Columnist, Judge's Journal Magazine
- Dennis M. Sweeney Associate Judge, Howard County Circuit Court (Retired); Author, "Worlds Collide: The Digital Native Enters the Jury Box," Reynolds Courts & Media Law Journal (2011)
“Digital Natives” On Juries, The “Facebook Five,” and Ensuring Fair Trials Today
In 2009, the public corruption trial of then-Baltimore Mayor Sheila Dixon was nearly derailed by Facebook. After the verdict of that case had been rendered, a journalist with the Maryland Daily Record discovered that five members of the jury “friended” each other over the social network and had communicated outside the courtroom during deliberations. On the basis of those reports, Mayor Dixon’s lawyers filed for a new trial, accusing the jurors of misconduct.
The parties in the Dixon case reached a plea deal and the jurors, the so-called “Facebook Five,” never faced charges for their actions in the digital world. But retired Judge Dennis Sweeney, who presided over the trial, says it’s an example of colliding worldviews, between the tradition-bound rules of the court system and “digital native” jurors. In a recent law review article, Sweeney explores the challenge of ensuring fair trials and unbiased jurors in the digital age, when jurors have been known to go home and research cases online, tweet from the courtroom, and engage in conversation about cases with friends (and, in the example of the Dixon case, fellow jurors) on social media sites. Sweeney says the “Facebook Five” represent a new kind of juror – the “digital native” who was born and raised in the Internet age and has never known a life that didn’t involve research and communication via the Web.
Sweeney says that trial cases with juries made up of digital natives are plagued by a fundamental discord between the jurors and the traditional trial system itself. “For a digital native, one used to the world of the Internet and social media, the methods and form of acquiring information in a trial may seem stifling, inefficient, and unduly restrictive,” he wrote. “For persons who are used to darting among many different devices, websites, blogs, social media sites on a continual basis…sitting in a jury box hour after hour, waiting for the slow presentation of each item of testimony or document, with interruptions for objections and bench conferences, will likely be an excruciating ordeal that is almost intolerable; especially if they cannot use their own electronic devices.”
What are the alternatives? Sweeney considers a complete ban on electronic devices in the courtroom, or the sequestration of juries, but dismisses both as unrealistic and as placing undue stress on jurors. Instead, he opts for a new set of voir dire questions to circulate to prospective jurors to determine whether they’d be able to follow the necessary restrictions on social media and Internet use during the trial. He argues that better judge and lawyer awareness about what kinds of questions jurors would find confusing could help them clarify those questions in court before jurors are tempted to research them on their own at home. Giving final instructions to jurors right before deliberations reiterating the rules on Web communications are another of Sweeney’s suggestions.
MR. KOJO NNAMDIIt was a blockbuster public corruption trial, a popular mayor of Baltimore accused of accepting lavish gifts from powerful developers and stealing gift cards intended for needy children. But the trial of Sheila Dixon was almost remembered as the case that fell apart because of Facebook. During the trial, five jury members became Facebook friends, violating court rules and creating an opening for the verdict to be appealed. The Dixon case was ultimately salvaged with the mayor cut a deal to step down from office. But some courts across the country have not been so fortunate.
MR. KOJO NNAMDIMurder and drug trafficking cases have been upended because of juror tweets and Facebook postings. Other trials have fallen apart when jurors researched topics on their own, an occurrence known as mistrial by Google. Trial-by-jury has been a cornerstone of American justice for centuries. But some judges are beginning to rethink old assumptions in light of new technology. Joining us to talk about how that thinking is going is Herbert Dixon, associate judge on the Superior Court of the District of Columbia. He's also a technology columnist with Judges Journal Magazine. Judge Dixon, thank you for joining us.
MR. HERBERT B. DIXONThank you, Kojo, it's my pleasure.
NNAMDIDennis Sweeney is also here. He was the judge who presided over the aforementioned Shelia Dixon case in 2009. He's a retired judge from Howard County Circuit Court. He recently wrote about the Dixon case in a journal article titled "Worlds Collide: the Digital Native Enters the Jury Box." Judge Sweeney, thank you for joining us.
MR. DENNIS M. SWEENEYThank you, Kojo. Glad to be here.
NNAMDIIt's a conversation you too can join, give us a call at 800-433-8850. Have you recently sat on a jury? You can also send us a tweet @kojoshow, email to firstname.lastname@example.org or go to our website, kojoshow.org, ask a question or make a comment there. Are you a judge or a lawyer? How do you approach social media? Judge Sweeney, I'll start with you. Courts across the country are grappling with social media. Just last month, a murder conviction in Arkansas was overturned because a juror had tweeted during a trial. You presided over a case that put this hazard on many judges' radar screens. Tell us about the case of Sheila Dixon.
SWEENEYWell, Kojo, during the deliberations in that case -- the deliberations occurred over the Thanksgiving weekend. And the jurors had been deliberating for a couple days already and we gave them a recess for four days. And what happened was, is five of the jurors during that recess became Facebook friends and they were communicating with each other during the period of time they were off. And then when they came back, they continued to deliberate and they reached a verdict and on one of the accounts, the mayor was convicted. And then afterward, what happened was, the names of the jurors were released to the media and an enterprising reporter for the Maryland Daily Record took the names and went onto Facebook.
SWEENEYAnd he found out that these five jurors had been communicating during the Thanksgiving Day weekend and wrote an article about that. And that led to a motion for a new trial and we had to decide what to do at that point because it seemed to raise issues about -- I had given the jurors...
NNAMDII was about to ask, what issues did it raise? It's my understanding, having sat on juries, that you're instructed not to discuss the trial with other jurors. But Facebook-friending them does not seem, in and of itself, to be a violation of that rule.
SWEENEYWell, that became the real issue here because the mayor's lawyers were saying, well, this violated the courts instructions. And I had given specific instructions to the jurors to say, don't communicate about the case. And I had mentioned, don't go on the internet, don’t post anything on Facebook pages about the case, et cetera. Now, the other side of this and one of the jurors was very explicit about this and seemed to make some sense, is she said nothing they discussed, at least that she was involved with, had anything about the substance about the case. It was more things like, what are you wearing to court next week?
NNAMDIBut technically, that's discussing the case, too, isn't it?
SWEENEYWell, that's sort of -- this gets into a real lawyer language here.
SWEENEYWhat is really about the case and what -- I think for generations we've known that jurors and...
NNAMDII'm wearing my guilty shoes tomorrow.
SWEENEYWell, I think that would be if you were -- if you were saying something like that.
SWEENEYBut I think the jurors, for generations, jurors we know have, you know, if there's two jurors that go home on the bus together, they're obviously going to be saying things like, wow, that was a long day in court. And I hope tomorrow, maybe the lawyers will be a bit more interesting, or something like that. Now, that's not something that's totally going to bother anybody. It's when two jurors or three jurors get together outside of the rest of the jurors and start hashing out the evidence. That's the type of thing we're trying to avoid. So the question in the case was which end of the spectrum was this on?
SWEENEYWas this the thing where they're really talking about the substance of the case or was this just sort of harmless banter between some jurors that didn't really make a big difference? And we never got to -- I'd ordered all five jurors to come in. I had ordered them to bring printouts of their Facebook pages. And we were going to have a hearing and I segregated each of the jurors in a separate room. And we were going to go over their testimony about it. And that's when the case got resolved and avoided the need to get into that type of detail.
NNAMDIJudge Dixon, today we have more digital tools, more ways of communicating with each other and quickly looking up things than ever before. But each of these tools, Facebook, Twitter, LinkedIn, Google, Wikipedia, they're also so potential landmines when it comes to court proceedings. How has new technology changed the way jurors and lawyers and judges behave in the courtroom?
DIXONThat's an interesting question, Kojo, because we are not sure if it's changed as opposed to becoming a little more exposed.
DIXONJurors have been instructed, from the beginning, not to discuss the case outside the courtroom. However with the advent of technology and the access to communications, when folks tweet about a case, when they blog about a case, when they leave Facebook postings about a case, all of a sudden conversations that may have been private in the past that we couldn't find out about as easily are now suddenly open to the public. And that has occurred with such frequency, in many instances, we find that some of the comments might've been appropriate, that is, they did not occur until after the trial was over and the jury was discharged. But because that information is discoverable, it can be found with respective communications.
DIXONYou end up having litigation over an issue that you wouldn’t of had to litigate about in the past. I can give you, you know, one...
DIXON...one quick example. In Arkansas, there was a juror that tweeted about -- and he said, you know, so Jonathan, what did you do today? He's speaking to himself. And he said, oh, nothing, I just gave away $12 million of somebody's money. And his next tweet said, oh, and by the way, nobody buy Strome (sp?), this was one of the parties in the case, it's bad mojo, they'll probably cease to exist now that their wallet is $12 million lighter. And you're wondering did this occur before the verdict was delivered and litigation occurred with respect to that.
DIXONIn that case, as best as I can determine, because there was a motion for a new trial, it was denied, an appeal was filed but I've not been able to find any results since then. The best information that I have is that those tweets probably occurred after the jury verdict had been rendered. But because the information was out there for the public, and it was discovered by the losing attorney...
DIXON...they had a basis to request a new trial. You know, just going further. Because of the advent of technology and the people's desire to have more information, it is a natural inclination unless folks are instructed, you know, often and strongly to go out to look for more information so that you can make an appropriate decision. And I think there's a lot that's incumbent upon the trial judge that's overseeing the case to make sure the jurors understand what they can and cannot do.
SWEENEYAnd a lot of times, Kojo, the juror that goes off the track is not the bad -- the so-called bad juror, it’s the most conscientious juror that goes off the track. The one who says, well, I saw what the lawyers presented in court, but it just doesn't seem satisfying. There must -- there's more information out there, let me go find it or let me ask one of my Facebook friends about it. I know a doctor, I could ask him or send him a tweet and find out really what this medical condition's about.
NNAMDIWe're talking about the age of social media and its impact on the nation's court rooms with Judge Herbert Dixon. He's an associate judge on Superior Court of the District of Columbia. He's also a technology columnist with Judges Journal Magazine. And Judge Dennis Sweeney was the judge who presided over the Sheila Dixon case in 2009. He's a retired judge from Howard County Circuit Court. He recently wrote about the Dixon case in a journal article titled "Worlds Collide: The Digital Native Entered the Jury Box." We're inviting you to join the conversation, 800-433-8850. If you have sat on a jury and observed any of this or if you happen to be a judge or a lawyer with an opinion on how you approach social media, 800-433-8850.
NNAMDIJudge Sweeney, we know that 2/3 of adults use social media. And many of them are so-called digital natives. They're accused to using the web for everything. But some judges don't even use email and courts are notoriously slow to adopt technology. You see this as two worlds colliding. Please, explain.
SWEENEYRight, well, really the values of the digital age are sort of exact opposites of the values of a court proceeding. In a court proceeding, all information you get is moderated, mediated by judges and lawyers who look at the evidence and decide whether or not you should even take a look at it. And that's the only evidence you get as information is supplied that way. In the digital world, what do you do? You go and Google something and you get hundreds of websites that come up and you decide, you as the user decide, which ones you go look at. That's what people are used to.
SWEENEYAnd so when you put them in a courtroom setting and you say I'll tell you what guys, the jury, you're going to only look at these things that the lawyers and I have looked at and given to you and as a matter of fact, we've redacted -- we've cut out certain paragraphs here that you can't see. That really goes against the grain of the digital native who says, whoa, now, I thought information was supposed to be free because that's what -- one of the mottos of the information age.
SWEENEYAnd information in court is very much looked at, segregated and mediated by the judges and lawyers. And that's becoming a harder and harder concept for jurors to accept and understand and it's a real challenge for judges to make sure that we're keeping things on track.
NNAMDIIn a way, the same question to you Judge Dixon. Are courts really prepared to deal with digital native jurors? When I use a new piece of technology, I find myself asking self-centered questions, what can this new gadget or what can this social platform do for me? But when a court or a judge looks at the same piece of technology, they seem to ask a different albeit trickier question, could this technology jeopardize the fairness of a murder trial or a civil lawsuit? Do these technologies actually threaten a right to a fair trial?
DIXONOh, they absolutely threaten the right to a fair trial, because what occurs if a juror seeks information on his or her own, if they have conversations on their own outside of the courtroom, you know, before a verdict about the case, they are now considering things that did not come to them within the context of the courtroom, evidence that has been ruled upon by the judge as being admissible or not admissible, other issues that the judge might have declared to be irrelevant. Jurors are then considering those items and they can end up in it being an unfair trial for one side or the other, either the government, the prosecution, or the defendant.
DIXONBut, you know, just to show you how pervasive this can be, to give you another example, this one occurred in Florida. In December, there was a juror, believe it or not, his name was Jock, you know, and he sort of looked the role, like a jock. It was a civil case, and the defendant in the case was a very attractive female, and he decided, I want to find out if I know some people that she knows, and so he looked up the information on Facebook and lo and behold found her contact information, sent a friend request, and even requested a date.
NNAMDIWait a minute. Let's be clear here. Who is requesting a date with whom here?
NNAMDIThe juror is requesting a date with the defendant?
DIXONWith the attractive female defendant.
NNAMDIWith the attractive female defendant.
DIXONAnd, well, after this was over, she finally said, well, gee, maybe if I had accepted the date the trial might have come out differently. But leading up to that point, the juror, sensing that this was going astray, informed her lawyer, the lawyer informed the judge, and the judge ended up putting this juror off the case. But the story doesn't end there. The juror then thinking this was so funny decided to send out more postings after this was over, ha, ha, ha, I got out of jury duty. I guess they don't like me doing this. The judge issued an order to show cause as to why that juror shouldn't be held in contempt, and the juror ended up being found guilty of criminal contempt for violating the Court's order, and actually sentenced to three days in jail.
NNAMDIWarning, the courtroom is not a place to try to find...
SWEENEYTo find a date.
NNAMDI...to find a date if you happen to be a juror, and the person you're attracted to happens to be the defendant. If I want to look up a medical condition, or if I want to research a news event, I want to see lots of search results, and then I want to pick and I want to choose and make up my mind about what is true, but Judge Sweeney, courts operate on a very different idea of information. In fact, they have to for fairness sake, due process itself is based on the idea of controlling information.
SWEENEYWell, that's right. If you're looking at a medical condition for example, you would Google it, you would get the Mayo Clinic would come up and Johns Hopkins would come up, and then there would be somebody's blog about the medical condition, maybe some pharmaceutical company would have something about that condition, and you as the user would say, well, maybe I'll look at the Mayo Clinic one for a bit and then I'll look at this other one, and I'll decide which one I'm gonna look at.
SWEENEYThat's not the way courts operate. Because of the rules we have established, and there's good reason for those rules, you have to tell the jurors, we're only going to consider the evidence that's presented in the courtroom while all 12 of you are here, and that everybody's had a chance to look at in advance, they lawyer's have, and that's the only thing you can consider, and that does go against the grain for that digital native.
NNAMDII got to tell you, I just got a Summons for jury duty, and I was reading and preparing for this broadcast, I said, oh, there's some things that I do every single day that I won't be able to do.
SWEENEYWell, that's right.
NNAMDIBecause anything at all that I hear that I don't quite understand, I look it up.
NNAMDIAnd if that happens in the courtroom, my temptation would be to do precisely that if I'm a juror.
SWEENEYWell, that's exactly...
NNAMDINot a good idea.
SWEENEYNot a good idea, but it goes, as you said, Kojo, it goes against the grain of the person that is this digital native, or...
NNAMDILike me, a digital immigrant.
SWEENEYA digital immigrant. And I've even found myself at my advanced age, of I'll be sitting at the TV, I'll have my iPad with me, something comes up on TV, I'll type it in and see what that term means, or who that person is or whatever, and that's the type of thing that's really gonna be hard for the courts to figure out how to control, and I'll give you an example of how difficult this problem is.
SWEENEYThere have been two cases in the last couple days where jurors have done some very innocent things, like they've gone home after being instructed by the judge not to do anything about Googling or Facebook or something, and they put up on their Facebook page, I'm in a jury trial and I won't be able to do anything for the next two weeks because I'm in this jury trial. Now that sounds good, like that's a good juror who is basically saying don't bother me. But what does that produce on Facebook?
SWEENEYThat produces your jerky friends all sending back comments saying, and there's one of the cases somebody said something equivalent of, well, I hope you get out of this trial soon, and by the way, hang 'em high, or something along that lines.
NNAMDIYour jerky friends.
SWEENEYYour jerky friends. Now, the lawyers today will monitor these Facebook postings and in the two cases, one was in Florida and actually one was in Howard County last week, where the comments that were posted, the lawyers saw the comments, the lawyer representing the -- this is a criminal case...
SWEENEY...saw the comments, came in, and asked to have that juror removed, and they had to have a hearing about whether that juror should be removed, and the juror said, look, I didn't do anything. I thought it was okay to say I'm gonna be in a jury trial for two weeks, and that was one of my goofball friends that did that, and the Judge in that case, in the Howard County case, he decided in a abundance of caution, he had alternate jurors, he says, thank you, but I think we're going to excuse you and we'll put the alternate in.
NNAMDIYour jerky friends got you kicked off the jury.
SWEENEYJury, right. And maybe that's a new way to get out of jury duty now, but it creates a real dilemma for how to get folks who are so socially media into the system to drop back and for the time we need to kind of almost drop back to a different generation. If you look at jury trials, a jury trial today is conducted pretty much the same way it was conducted a hundred years ago.
NNAMDII should mention you can find Judge Sweeney's account of the Facebook Five on our website, kojoshow.org. Judge Sweeney is no relation to our producer, Brendan Sweeney, and we should note that Judge Dixon has an active Twitter account @jhbdixon, and he is no relation to the aforementioned mayor of Baltimore -- former mayor of Sheila Dixon. But you were going to say, Judge Dixon?
DIXONI just wanted to add that with respect to the example that Judge Sweeney was given, this is a demonstration of how technology has probably brought more into the open, some of these things that used to occur. For instance...
DIXON...if the juror were traveling home by bus or subway, and someone said anything, you never would have known about it. But now all of a sudden, a response to the Facebook page is open to the world.
NNAMDIAnd your Facebook friends often retweet things that you tweet, and people respond to that and it shows up just about every place. We've got to take a sort break. We have several calls who seem to have very pertinent questions, so stay on the line. We will get to your calls. The number is 800-433-8850 for your questions or comments, or you can send us a tweet @kojoshow. I'm Kojo Nnamdi.
NNAMDIWelcome back to our conversation on trial by jury in the age of social media. We're talking with Hebert Dixon. He's an associate judge on the Superior Court of the District of Columbia. He's also a technology columnist with Judge's Journal magazine. Dennis Sweeney was the judge who presided over the Sheila Dixon in 2009. He's a retired judge from Howard County Circuit Court. He recently wrote about the Dixon case in the Journal article titled, "Worlds Collide: The Digital Native Enters the Jury Box." Wanted to go to the phone and start with Arianna in Arlington, Va. Arianna, you're on the air. Go ahead, please. Hi, Arianna, are you there?
ARIANNAYes. Hello, can you hear me?
NNAMDIYes, we can.
ARIANNAHello. I had a question. Earlier you said that in some cases, having more information and having it be readily accessible, that it might actually interfere with having a fair trial, and as a lay person it's a little bit confusing, a little bit difficult to understand. Can you give an example...
ARIANNAYeah. Counterintuitive, exactly. Could you give an example perhaps of a case where having more information wouldn't actually lead to having a more fair trial.
NNAMDILet me tell you about the liver mortis case, because one of our judges can address the liver mortis case.
NNAMDIAnd Judge Sweeney, that was a case in which a juror -- a Maryland Appellate Court overturned a felony murder conviction because a deliberating juror conducted an online search for the terms liver mortis and algor mortis on Wikipedia, printed out the pages and brought them into the jury room during deliberations. Our caller Arianna would say, what's wrong with that?
SWEENEYWell, what's wrong with that is that that was done without the attorneys being able to see it. Somebody's life -- the rest of their life was at stake there, and due process, which we value very highly, means that before you are convicted of an offense, you should have an opportunity to see all of the evidence against you, and it should be subject to cross-examination. These are values that are critical and fundamental to our Constitution.
SWEENEYAnd it is certainly true that there is a lot of information out there, and people in their normal lives are used to mediating this information themselves and deciding what to look at and what not to look at. But when somebody's life is at stake, we have to have different rules.
NNAMDISo if that juror was sitting there and heard the terms rigor mortis and liver mortis and did not understand what they meant, the proper procedure would be for that juror to tell the foreman of the jury at the appropriate time, I do not understand these words, can we get a clarification?
SWEENEYWell, this is what some jurisdictions have done, and which I, in my article, encourage judges to do, which is have a system in place where something comes up in the trial, where a technical term is used, or an acronym is used, or something like that, that is confusing the jurors so the jurors don't understand, that they be allowed to write a question down. What does rigor mortis mean? What does liver mortis mean? Give that to the bailiff, the bailiff takes it up to the judge, the judge looks at it, discusses it with the lawyers and the lawyers then decide how to handle that.
SWEENEYAnd it's almost -- in my article, I say one of the things that a judge is almost becoming like Kojo, like a radio host. You listen for when people use technical terms I'm sure here on the program...
SWEENEY...and you say, what does that mean?
SWEENEYCould you explain that? And I think judges have to become more like that. We can't just let a trial go one and see stuff coming up that we know is basically begging jurors to go out and find out more information. And lawyers have to change the way they present cases so that they're not leaving these questions hanging.
NNAMDIArianna, when I raised the same question you raised, you know, what occurred in the conversation that we had? What if what you looked up online, say in Wikipedia, happened to be absolutely incorrect? Because as you know, in Wikipedia, people can change things.
ARIANNARight. Yeah, absolutely. I can see how that would definitely interfere with the case and receiving a fair trial, however, is it not also a possibility that leaving that definition open to the attorneys and to the judge to decide that it also can be influenced by their bias as well?
NNAMDIWell, from what I heard Judge Sweeney say, if, in fact, the judge -- if the question is raised and the judge answers it, then that is done within the context of the trial and therefore everybody would be operating on the same definition...
NNAMDI...regardless of whether it was technically correct or not, it would be -- that would be the subject of another case. But I wanted to talk to you, Judge Dixon, to talk in more general terms. Judge Sweeney talked about a specific instruction that he gave or idea that he had in his article, in more general terms, how do you now deal in a courtroom given the existence of social media?
DIXONI have developed my method, and I believe that a lot of judges follow a similar process, and that is to tell jurors early and often what is and is not permissible. For instance, during the selection of the jury, this is before, you know, they've been sworn to hear the case, during the selection of the jury, because there's a lot of idol time, I will tell jurors that not only may they not talk about the case to their fellow jurors who are with them, they may not tweet about the case, make Facebook postings, make postings on MySpace, LinkedIn, YouTube, or any other social media site, and I remind them that this includes oral and written and electronic communications.
DIXONAnd I also add, Kojo, and I think this is helpful, that there are three reasons this instruction is being given, and I really spell it out to them. First that it's a part of my job to ensure fairness between the parties. That is, for each side of the case, and jurors who access information that did not come to them within the context of the courtroom are interfering with that ability to ensure fairness between the parties.
DIXONThe second reason I tell them is that someone who violates the instruction could end up jeopardizing the results of the trial, and I ask them to just think about it. We're going through jury selection, eventually we're going through trial, there will be final arguments, closing instructions, deliberations, verdict, and then we find out later someone violated the instruction, that could jeopardize...
NNAMDIAfter we spent hundreds of thousands of dollars on this case.
DIXONYes. That would jeopardize the result of the trial. And then I have a third reason. It took me a while before I started giving this third reason, but I figured it was important enough and it emphasized a point. Third reason is that anyone who violates the instruction could end up getting himself or herself in some serious trouble. Now, in the beginning, I give the instruction in a very expanded fashion, but as the trial goes on, I will begin to shorten the instruction, but I give the instruction early...
DIXON...and I give it often, and I actually speak to the jury saying, you know, I'm counting on your to help me ensure the fairness of this trial, because, you know, you would not someone on your jury to violate this type of instruction.
NNAMDIOn to the telephones. Thank you for your call, Arianna. Here is Jeff in Washington D.C. Jeff, you're on the air. Go ahead, please.
JEFFGood afternoon, gentlemen.
JEFFI have a comment that comes from the previous caller, and a question. You know, it's always been within the inherent authority of a judge to tell jurors that they can write a question and give it to the bailiff, and it's then up to the judge to decide what to do with it. But I've never heard a judge tell jurors that they could do that, and that might be something worth considering. What the judge chooses to do with that question is, is a later question to be decided, but most jurors it would not even occur to them that they could make such a request, can you clarify what something means, or can you ask a witness to clarify it or something.
JEFFSo I throw that out to you as something that you might consider in the future.
JEFFThe other things is that for years we've told jurors that they can't read the newspaper, they can't look at television, to look at news that may be coming out relevant to the trial...
JEFF...but the business of what they can say is a much more precarious issue, because now you come to an intersection with their First Amendment rights, and when you caution somebody that you cannot make a posting to their blog or to their Facebook page, that's an entirely different animal than you can't go out and read about something.
NNAMDIIs it really a different animal at all, Judge Sweeney?
SWEENEYWell, it may be a different animal in terms of what rights are stake, but I don't think there's any question that if you're picked as a juror that your first amendment rights are not impaired by saying to you that during the course of this trial you cannot say things that are going to be prejudicial to the conduct of this trial. Now, after the trial is over, after you are discharged as a juror, then you can say anything you want. You can go through the entire trial if you wish and do a blog and a posting and whatever, but I don't think your First Amendment rights are unfairly impaired by during that short period of time you're on a jury of saying you can't be doing these type of things.
SWEENEYI do agree with the caller, with Jeff, the judges should let jurors know about the opportunity for questioning. I generally do that in my jury trials, and the lawyers sometimes don't like it ...
NNAMDII was about to say you end up with somebody like Larry King on your jury and you're answering questions all day long.
SWEENEYWell, that can happen, but my experience, and there's been some studies done by some academic scholars on this, is it does not produce a huge number of questions overall. You may get an outlier there who just asks questions after questions, and the judge has the power to kind of shut that off too, and to redirect the jury. And when you tell them this, you say to the jurors, you say, the attorneys have spent have awful lot of time preparing this case.
SWEENEYThey have a case to present to you, and you may not get the answer right away, but it will be coming, and what you -- I think as a judge, what you also have to do is point out to the lawyers where there may be these gaps like the rigor mortis thing or the liver mortis thing where you're saying, hey, nobody's explained that to the jury. Are you sure you don't want to kind of amplify that out for the jurors.
NNAMDIIt's -- has technology changed the way lawyers argue cases before you? It's one thing for lawyers to scrutinize public records during juror selection, which now takes place, but it also seems like they're scouring social media after verdicts have been handed down looking for a comment or tweet that must justify appealing a conviction or a settlement. Are these technologies actually extending the lives of civil and criminal cases, Judge Dixon?
DIXONIn some cases they are, because now what may have occurred privately has occurred in a much more public avenue, and if it is a posting that is advantageous to a lawyer's request to revisit a verdict, the lawyers will follow up on it. Yes. Technology is affecting the presentation of cases during the trial, and the legal issues that are litigated even after a trial. May I just join...
DIXON...Judge Sweeney with that juror that asked the question about the First Amendment rights. Very early in the history of the Supreme Court it was recognized that there are limitations on what First Amendment rights might exist. For instance, the case basically says you don't have a right to yell fire in a crowded theater, you know.
DIXONAnd so there is a limitation on that First Amendment right. And within the context of a trial, it is an appropriate limitation and regulation to instruct jurors that they may not talk about the case until they have been discharged, and if they violate the instruction, they should not think that the First Amendment is going to save them because it is a direct violation of a court order.
NNAMDIJudge Sweeney, during jury selection for Sheila Dixon's trial, she had a team of lawyers who were researching prospective jurors in real time, scouring their public records, and lawyers now apparently even have their own apps with names like juror and jury tracker. Is this the new normal?
SWEENEYI'm afraid it's becoming the new normal, and I've had lawyers tell me that they now think it's within the standard of care for lawyers that they should do this part of their representation of their clients, and that it would be malpractice not to do it if you can. And in fact, there are now commercial services that you can employ, and they're not that expensive, that will track all of your jurors during the course of a trial no matter how long the trial goes, and they will scan every day to look for all social media sites, any mention of that person's name, anything, and deliver that back to you in real time.
SWEENEYThey're commercial services that will do that for lawyers now. One of the real problems is I'm not sure when you get called in for jury duty that you're thinking you're going to be exposed to this kind of comprehensive scrutiny of your every aspect of your life, and going back on -- looking at all your social media sights, looking at your Pinterest page, to see what you posted there.
NNAMDIWe go -- we return to the picture dancing on the table with the lampshade on your head, yes.
SWEENEYThat's right. That's right. That's right. What you thought had been deleted, but it had not.
SWEENEYAnd I'm not sure the jurors, how they're going to feel when they come in for jury duty thinking they're doing their public service and are exposed to this type of scrutiny.
NNAMDII'm afraid we're out of time. I'll tell you my own experience with this in just a few weeks. Dennis Sweeney is a retired judge from Howard County Circuit Court. He recently wrote about the Dixon case in a Journal article titled "Worlds Collide: The Digital Native Enters the Jury Box." And Herbert Dixon is an associate judge on the Superior Court of the District of Columbia. He's also a technology columnist with Judge's Journal magazine.
NNAMDIHe's been on the Superior Court for two decades. In a previous life, however, he did a bachelor's in electrical engineering from Howard University. Judge Dixon, thank you for joining us, and thank you all for listening.
NNAMDII'm Kojo Nnamdi.
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