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Wednesday, May 29, 2013

The Jodi Arias Trial Continues: Social Media and Jury Selection

Can social media and fair trials co-exist? The increasingly voyeuristic coverage of trials by media outlet HLN should give the public cause for concern.

The matter has been reviewed. A November, 2011, Federal Judicial Study states juror misconduct is rare. But, a 2012 study published in the Duke Law & Technology Review suggested that judges, as part of their instructions, should request jurors not to use social media. The article included an informal survey of 140 jurors who were asked if they were tempted to communicate on social media. Interestingly, only 6, or 4% "admitted" to the temptation.

Misconduct due to social media is a challenge to fair trials. Because of facebook postings by "bored" jurors, attempts to "friend" defendants, and tweeting during trial, there have been mistrials, and jurors have faced charges for contempt. In 2011, Arkansas a capital murder conviction and death sentence, Dimas-Martinez v. Arkansas, were reversed due to jury misconduct via tweets. Juror misconduct related to jurors doing their own research on wikipedia caused a mistrial in a 2012 Fresno County murder case against  Chris Lavalle WashingtonAlso in 2012, a juror using a pseudonym commented on an online newspaper story about a murder trial on which he was a juror and may be charged with a felony.

Needless to say, personal tragedies are compounded and tax payer dollars wasted by inappropriate juror behavior relating to social media. In New York City where the murder rate dropped 18.6% from 2011-2012, there were still 419 murders. If  these cases were jury trials, 17 (4% x 419) might be mistrials because of juries "tempted" by social media.

Thomas Mesereau, representing the estate of Michael Jackson in the Conrad Murray trial said, "This is the world of social media, and it directly impacts criminal trials." In the very near future, professional jury consultants who have the expertise to vet a prospective juror's online footprint will be in demand for high profile trials. People predisposed to be negative about a case, or the death penalty, will be identified through their online postings and eliminated from the jury pool.

The attorneys for Jodi Arias will have learned lessons on how to select a jury that can deliver a sentence, but as public defenders, I am not sure they have the resources to hire jury consultants to help them.  Certainly jury selection for the new penalty phase trial will include voir dire questions about how much potential jurors know about the case. Four months of trial has been plenty of time for "impartial" jurors to make their opinions obvious to "friends" and family. There will be online evidence to controvert anyone who says they are still in the dark. Jurors too active online with comments about the case will be excused.

If you want to do your civic duty as a juror, change your facebook settings to private.

Article first published as The Jodi Arias Trial Continues: Social Media and Jury Selectionon Technorati.

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