Technology, Social Media & the Impact on the Courts

Marcus Reinkensmeyer, Court AdministratorJessica Funkhouser, Special Counsel

Superior Court in Maricopa County

Social Media Revolution

YouTube Video: Social Media Revolution 2

http://www.youtube.com/watch?v=lFZ0z5Fm-Ng

What is “Social Media”? “Use of web-based and mobile

technologies to turn communication into interactive dialogue” – Wikipedia

Electronic communication via internet and mobile-based tools

Interactive Networking Sharing opinions, information &

content Building communities and networks Encouraging participation and

engagement

Examples Facebook – status updates,

photos, videos, check-in MySpace – similar posts LinkedIn – professional

networking Twitter – 140-character updates Blogs – anonymous and not YouTube – on-line videos and

blogging

How to Access “Social Media”

Home and office computers Laptops, netbooks & tablets PDAs Cell phones, Smartphones Web TV

Smartphone Capabilities Access the internet Photos – take, send, receive, edit Videos – ditto E-mail – synch with office and

personal accounts Read & edit documents Skype and FaceTime Tunes “Apps”

Apps Google search Maps – including satellite and street

view Facebook GPS Twitter Newspapers, magazines, books Wikipedia Mobile Angry Birds & other games Pandora Radio

How Many Apps?

Apple’s App Store opened July 10, 2008 January 2011 – 350,000 apps May 2011 – 500,000

Google’s Android market should surpass Apple by July 2011.

Apple Talk, Josh Lowensohn (May 24, 2011)

Opportunities – Reaching a Broader Audience

Large segments of the population are using social mediaYoung people = largest groupAnd even Baby Boomers =

largest increase in Facebook users: women 55 and older

Reporters

“Facebook Demographics Revisited – 2011 Statistics”

Web Business by Ken Burbary, Mar 7, 2011

“Facebook Numbers Feed IPO Outlook”

The Wall Street Journal, WSJ.com, Geoffrey A. Fowler (May 1, 2011)

Facebook on track to exceed $2 billion in earnings

It is one of the largest technology companies

More than 600 million users, who share photos, Web links and tastes….

Facebook Statistics

200 million people access Facebook via a mobile device each day

More than 30 billion pieces of content are shared each day

Facebook generates a staggering 700 billion page views per month

Source: facebook.com

Where Do Young People Get News?

Where do young people get their political news and information?

http://www.youtube.com/watch?v=DKm6JYCfDLs

YouTube – Others are Posting Information About the Court

Posting video clips from court’s “For the Record” system

Arizona’s court records rule requires release to individuals/media upon request (with exceptions - Rule 123)

Or filmed by media camera in the courtroom (Rule 122)

Some go “viral” Then people blog about the video

DMX on YouTube

http://www.youtube.com/watch?v=5EtET9Va9oM

YouTube: Officer Swipes Notes From Lawyer

http://www.youtube.com/watch?v=UIoyJ-LyAaE

“Who Tweets?”

Pew Research Center, Aaron Smith & Lee Rainie (Dec. 9, 2010)

“Do you ever use the internet to use Twitter or another service to share updates about yourself or to see updates about others?”

August 2008 – 6% of internet users Sept. 2010 – 24% of internet users

Twitter Use

Young adults 18-29 Minority internet users more than

twice as likely to use Twitter Urban residents roughly twice as

likely Women and college-educated

slightly more likely than average 24% of Twitter users check several

times a day

Opportunities – Facebook Community Outreach

Access to court services Self-help forms Public information Seminars for the public New court services Awards Special projects Volunteer opportunities Job openings Court locations & parking

Opportunities – TwitterSpeed of Communication

“Real-time” communication by Court PIOsPosting directly from courtroom vs.

adding content to websites or sending emails from office

Immediate release vs. delayed press releases

Fewer phone calls to/from media & public

Opportunities – Directs Court Customers to Court’s Website

Tweets“Initial Appearance Video for Earl

Simmons (DMX) is now on website”

High Profile case site has been updated on court’s website

Opportunities – Reporters

Ensures they receive accurate information

Ensures they get information the Court wants them to have

Fewer reporters in courtrooms, taking up seats and places in long security lines

Media relations improved

“Massachusetts Brings Social Networking to the Courtroom”

Yahoo News, Molly McHugh (May 2, 2011)

OpenCourt experiment Partnership between court and

Boston NPR station Allows “journalists, bloggers, and

anyone with an iPhone to use Wi-Fi to create real time updates and live stream cases as they unfold.”

OpenCourt = camera = transparency = democracy?

Goal: “foster openness of the American courts with the idea that more transparent courts make for a stronger democracy.”

Controversy: invasion of privacy – defendant doesn’t want public to view his trial at home

Defense attorney: fraught with perils – attorney’s conversation can be picked up

Judge has discretion on whether stream goes live; can protect witnesses, etc.

Tweets re: WikiLeaks Founder’s Hearing

One reporter told his Twitter followers: “judge just gave me explicit permission to tweet proceedings ‘if it’s quiet and doesn’t disturb anything’”.

Another reporter added: “In an amazing nod to the fact we live in digital age, judge has said we can tweet.” The Telegraph, Shane Richmond (Dec. 15, 2010)

News Flash from Arizona - 1979

Since 1979, Rule 122, R.Ariz.S.Ct., permits cameras in the courtroom

Proceedings have been live-streamed from Arizona courtrooms for years

Reporters, the public and Court PIOs have been blogging & tweeting directly from the courtroom

No telephone photos – any photography must be pursuant to Rule 122, with the Court’s permission

Pitfalls: “As Jurors Turn to Web, Mistrials are Popping Up”

New York Times, John Schwartz (Mar. 18, 2009)

9 jurors doing internet research during federal court trial

Juror posted updates on Twitter and Facebook during a federal corruption trial

Pitfalls – Misconduct / Mistrials

Lawyer disbarred for blogging while serving as a juror

New trial sought because 5 jurors became Facebook friends and “changed jury dynamics”

Maryland murder conviction reversed when juror researched definition of “lividity” on Wikipedia

“Google” Mistrials

Juror watched an A & E report on the case

Jurors texted during trial & chatted with bailiff, and prosecutor posted a ditty about the trial on Facebook

Defendant “tweeted” during trial “Until today I never understood the true

depth that ineffective counsel could achieve. The 6th Amendment screams for justice.”

More Juror Issues

Prospective juror in Casey Anthony trial posted info about the trial on Facebook, including “Book coming soon.” www.wesh.com, May 14, 2011.

Judge denies post-trial request to inspect internet records of juror. Dayton Daily News, Denise Callahan (May 23, 2011)

Arizona’s “Google” New Trial

Aguilar v. State, 224 Ariz. 299, 230 P.3d 358 (App. 2010)

Bailiff discovered “extraneous documents” in foreman’s notebook

Reported to counsel Motion for new trial Trial judge held full evidentiary

hearing

Aguilar v. State – Facts

Foreman “Googled” – “first degree murder Arizona”

Printed definitions and brought them to jury room

Juror 9 researched “premeditation” Jurors discussed and considered

these definitions They were “significantly different”

than the Court’s instructions

Aguilar v. State – Facts

Foreman “considered” his research Juror 9 – confused but then internet

definition “solidified my thinking” Juror 11 – definitions “helped me

understand” Juror 2 – the jury “considered” them

& information was “important” Juror 7 – agreed it was “important”

in the juror’s deliberation process.

Aguilar v. State – Law

State must prove beyond a reasonable doubt that the misconduct did not taint the verdicts.

Defendant is entitled to new trial if it cannot be concluded beyond a reasonable doubt the extraneous information did not contribute to the verdict.

Aguilar v. State – Factors to Consider

1. Importance of the word or phrase being defined to the resolution of the case

2. Extent to which the dictionary definition differs from the jury instructions or from the proper legal definition

3. Extent to which the jury discussed and emphasized the definition

Aguilar v. State – Factors

4. Strength of the evidence and whether the jury had any difficulty reaching a verdict prior to introduction of the dictionary definition

5. Any other factors that relate to a determination of prejudice

Aguilar v. State – Holding

Because state failed to prove beyond a reasonable doubt the jurors’ misconduct did not taint those verdicts, defendant is entitled to a new trial.

Imagine the Possibilities!

Jurors have the ability to look at the crime scene street view on line on their Smartphones

More Possibilities Jurors can “Google” the lawyer,

defendant, witnesses, judge Jurors can “follow” a reporter who is

covering the trial on Twitter Jurors can “follow” the defendant on

Twitter Jurors can access attorney’s,

defendant’s and judge’s Facebook pages

Other possibilities?

Banning Cell Phones in Courts? “Can You Hear Me Now” The Court Manager, Nora Sydow (July

2010) Many cell phones have cameras now Reasons to ban them:

Security risksDisruption of proceedingsPossible improper research by jurors

during trial & deliberations

“Can You Hear Me Now?”

“Banning such technologies from the courts is growing increasingly difficult and impractical”

Reasons Not To Ban Them

Staff time and delay in “bagging and tagging” cell phones

Makes jury service even less attractive and more cumbersome

Cell phones becoming more “essential” to our lives

More Reasons Not To Ban Them The only way some lawyers can

check calendars for availability Gives people something to do during

down time (e-book vs. paperback) Longer lines … late arrival for hearing Liability for loss or damage of bagged

and tagged phones at security station Media criticism: attempt to “shield

the workings of the courthouse from public scrutiny”

The Reality “Technology is so ubiquitous. For

many people, it’s their way of life. They tweet, they blog, they look up things online. It’s literally in their pocket. It’s their routine. You can’t just tell people they can’t do this and that. You have to tell them why and the consequences.” Eric Robinson, Attorney, Deputy Director of the

Reynolds Center for Courts and Media, University of Nevada, Reno, “Juror’s Research Led to Murder Mistrial,” standardspeaker.com (Jan. 17, 2011)

More Reality

“It’s really difficult to control because people in this day and age have an expectation of instant access to information. It’s an automatic impulse for some people. When they do it, even if they should know better, their real ambition in doing it, is trying to understand matters they recognize as being important.”

Dr. Douglas Keene, Keene Trial Consulting, Austin, Texas, Id.

Resource for Electronic Device Policies

National Center for State Courts (NCSC)

Links to state cell phone and electronic device policies

NCSC Mobile Device Policy Development Checklist

Stakeholder input? Will devices be allowed? – specific

areas? Who will policy cover? What devices are covered? Permitted uses? Enforcement? How will policy be distributed?

Researching Prospective Jurors “Tech Check”

ABA Journal, Stephanie Francis Ward (July 1, 2010)

Paralegals carrying laptops with 3G wireless cell phone lines check social media sites for info on jurors as names are called

Lawyer had 2 employees in the courtroom and 1 back at the office researching each prospective juror

Juror Research Issues Does a judge have a duty to protect juror

privacy? Does this research invade juror privacy? Is there a First Amendment right to see

information accessible to anyone in the public posted about prospective jurors?

Can you prohibit attorneys from doing this type of research on jurors?

Is it unethical for an attorney to do this? Is it ineffective representation not to do

this?

Can Ban on Tweeting Be Enforced? “Twitter Posts Make Enforcing U.K.’s

Media Super-Injunctions a ‘Nightmare’” Bloomberg.com, James Lumley (May 9,

2011) In the U.K. courts can issue a super-

injunction prohibiting writing about extra-marital affairs, etc., of celebrities

But they are finding it impossible to enforce if posted on Twitter, a U.S. company

And in the U.S., there’s the First Amendment

Instructions for Jurors

Superior Court in Maricopa County’s posterjury assembly roomjury deliberation rooms

Jury Instructions

Superior Court in Maricopa County’s jury instruction (attached)

Judicial Conference Committee recommends a model rule on electronic communication

Ohio Courts’ new jury instruction for social media use

Pitfalls – Judicial Ethics

South Carolina, Opinion No. 17-2009 (Oct. 2009)

Magistrate judge may be Facebook “friends” with law enforcement officers and employees as long as no discussion of anything relating to the judge’s position as a magistrate judge

South Carolina Opinion

“[a]llowing a Magistrate to be a member of a social networking site allows the community to see how the judge communicates and gives the community a better understanding of the judge.”

Pitfalls – Judicial EthicsFlorida, Opinion No. 2009-20 (Nov.

17, 2009) Judges cannot accept lawyer

“friends” on Facebook or discuss pending cases

The “accepting” of friends or allowing lawyers to list judge as a “friend” creates the inappropriate appearance

Violates Canon 2B - impression of special position to influence the judge

Pitfalls – Judicial Ethics

Kentucky, Opinion No. JE-119 (Jan 20, 2010)

May a Judge or Justice be on Facebook, LinkedIn, MySpace or Twitter and be “friends”?

Answer: a qualified yes Facebook “friend” in and of itself

does not convey impression that someone is in a special position to influence judge

Kentucky Opinion Cautions

Judges should be mindful of whether on-line connections combined with other facts rise to the level of a “close social relationship” that should be disclosed or require recusal

Kentucky Cautions Cont’d

Public sites are “fraught with peril” “Pictures and commentary posted

on sites which might be of questionable taste, but otherwise acceptable for members of the general public, may be inappropriate for judges”

Ex Parte communications are prohibited

Kentucky Cautions Cont’d

Judges are prohibited from making any public comment that might reasonably be expected to affect the outcome of a case or impair its fairness

Judges cannot practice law or give legal advice

New York & Ohio Allow “Friends”

New York, Judicial Ethics Advisory Opinion 08-176 (Jan. 2009).

Ohio, Judicial Ethics Advisory Opinion 2010-7 (Dec. 2010)

May use social network Must comply with the ethics rules

Ohio Jud. Cond. Rule 1.2

Must maintain dignity in every comment, photograph, and other information shared on the site

Ohio Jud. Cond. Rule 2.4(C)

Must not foster social networking interactions with individuals or organizations if such communications erode confidence in the independence of judicial decision-making

Must not convey the impression of external influence

Ohio Jud. Cond. Rule 2.9(A)

Should not make comments on a social networking site about any matters pending before the judge – not to a party, not to a counsel for a party, not to anyone.

Ohio Jud. Cond. Rule 2.9(C)

Should not view a party’s or witnesses’ pages and should not use social networking sites to obtain information regarding the matter before the judge

Ohio Jud. Cond. Rule 2.10

Should avoid making any comments about a pending or impending matter in any court

Ohio Jud. Cond. Rule 2.11(A)(1)

Should recuse when the judge’s social networking relationship with a lawyer creates bias or prejudice concerning the lawyer of party

There is no bright-line rule – “Not all social relationships, on-line or otherwise, require disqualification”

Ohio Jud. Cond. Rule 3.10

A judge may not give legal advice to others on a social networking site.

Ohio – Summary of Advice

“[A] judge should be aware of the contents of his or her social networking page, be familiar with the social networking site policies and privacy controls, and be prudent in all interactions on a social networking site.”

Seduced by Social Media?

“Seduced: For Lawyers, the Appeal of Social Media Is Obvious. It’s Also Dangerous” ABA Journal, Steven Seidenberg (Feb. 1, 2011)

A North Carolina judge – Facebook friend of attorney who had pending case Public Reprimand of Terry, North Carolina Judicial

Standards Commission, Inquiry No. 08-234 (April 1, 2009)

North Carolina Cautionary Tale

Attorney, “How do I prove a negative?”

Judge, “I have two good parents to choose from”

And “[the judge] feels that he will be back in court” (i.e. the case had not settled)

Attorney: “I have a wise judge.”

N.C. Judge

Judge: “he was in his last day of trial.”

Attorney: “I hope I’m in my last day of trial.”

Judge: “You are in your last day of trial.”

N.C. Judge

Judge used internet to find information about the wife’s photography business

Viewed samples of photography and poems

Quoted one of the poems in court

Public Reprimand

Failure to observe appropriate standards of conduct to ensure that the integrity and independence of the judiciary shall be observed

Ex parte communications with counsel

Failing to act in a manner that promotes public confidence in the integrity and impartiality of the judiciary

Public Reprimand

Conducting independent ex parte on-line research about a party presently before the court

Conduct prejudicial to the administration of justice that brings the judicial office into disrepute

Superior Court in Maricopa County’s Facebook & Twitter Guidelines

Pages of the Court; not individual judges

Only designated PIO staff may post and “Tweet” Trained in the judicial ethics rulesSpeak with “one voice” for the

Court

Maricopa Guidelines Cont’d

Anyone who wishes to “like” the Court on Facebook or “follow” on Twitter may do so – no acceptance required

“Anonymous” Blogging:Another Cautionary Tale

Judge from Cleveland, OH Blogs about pending cases in her

court were posted from the judge’s blog account (“lawmiss”)

Sometimes at times when someone was logged in on her office computer

Cautionary Tale Cont’d

Newspaper released information about the judge’s blogging ID/account informationSaid it was in the public interest

Daughter says she was blogging; not her mother the judge

Judge declined to recuse herself

Ohio Supreme Court

“Although the record does not cause me to question Judge Saffold’s ability to be fair and impartial in the underlying matter, the nature of these comments and their widespread dissemination might well cause a reasonable and objective observer to harbor serious doubts about the judge’s impartiality.”

Removed Judge from Case

“[T]hese unfortunate postings have created a situation that 'poses an impediment to the judge's ability to resolve any remaining legal and factual issues in a way that will appear to the parties and the public to be objective and fair.' "

Judge Removed, Cont’d

"An objective observer who has read the online postings might reasonably question why comments about a defendant and defense counsel appearing before the judge were posted on the judge's personal online account, even if the judge did not make the comments herself."

Ohio Supreme Court

“When the case becomes about the judge rather than the facts of the case and the law, it is time for the judge to step aside.”

New Resources for Courts

NACM Media Mini Guide Includes the topics of “social

media” and “new media” NCSC Social Media & the Courts

Resource Guide on-line http://www.ncsc.org/Web%20Document

%20Library/IR_BrowseByTopic.aspx

For Further Information:

Superior Court in Maricopa CountyMarcus Reinkensmeyer, Court

Administrator 602-506-3190

Jessica Funkhouser 602-717-2391