Why Trial Lawyers Need to Know About Blogs
When I tell people I have a blog, I get a lot of blank stares or confused looks. Sometimes a brave soul will admit that they don’t know what I’m talking about and will ask me, “What’s a blog?” or say, “I don’t understand blogs.”
A recent New Hampshire case demonstrates the dangers of not being up on the most recent technology and social networking tools and how the general public is using them. After a verdict convicting his client of rape, counsel for the defendant discovered that the jury foreman was a blogger who had written on his blog about having to serve on a jury and listen to the “local riffraff” try to “convince me of their innocence.”
What does this juror’s comments say about the juror’s attitude toward the presumption of innocence and the burden of proof in a criminal case? As defense counsel, would you have prevented this juror from sitting on the jury if you could? Even if the court denied a cause challenge, would you have used a peremptory challenge?
Although defense counsel was able to bring the issue to the court’s attention after the verdict, the trial court declined to throw out the verdict after interviewing the jurors and took the blogger at his word that he could set aside any past bias, follow instructions and give the defendant a fair trial.
The defendant’s appeal was unsuccessful. The appellate court did not find any juror misconduct or evidence of actual prejudice to the defendant, since the blog entries were not shared with the other jurors.
Since jurors have agendas and biases, it’s wise to consider how they might use those agendas and biases to influence others, both inside and outside of the courtroom. Some courthouses are even providing jurors with internet access during breaks, and that, coupled with the prevalance of handheld devices with internet access, makes blogging about trials or jury service in real time easy to accomplish.
Whether you agree with the court’s decision in this instance or not, it seems pretty clear that lawyers have to be cautious during voir dire to ask questions that reflect current technologies and the popularity of blogs and the internet. The availability of free or inexpensive instantaneous access to millions of people over the internet using blogs, My Space and other technologies are things that must be taken into account when preparing for trial.
It is possible that this juror’s biases could have been discovered had the juror been questioned and honestly answered questions about his views on the criminal justice system, and whether he had any pre-formed opinions or had commented about the presumption of innocence, etc. But asking questions specifically about blogging and other internet activities might have revealed some of those biases, or at least the potential danger.
For more on the New Hampshire case, see the ABA Journal e-report article, Blogger’s Posts Don’t Equal Juror Misconduct by Molly McDonough.
To read more on ‘rogue jurors,’ see the ABA Journal article, Rogue Jurors, also by Molly McDonough.