The
reveal more about opinions or beliefs that may influence their decision-making process in the trial. Lawyers would be wise to check up on website and social networking posts of the opposing party25
and opposing
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Tere is no uniform rule on electronic communications
in Maryland’s state courts. A recent proposed rule would have provided some consistency, but it was rejected, leaving the administrative judges to craft rules specific to their courthouses, and individual judges to issue orders controlling their courtrooms.23 Te rule on electronic communication devices in
Maryland’s federal courts is that “[c]ell telephones, pagers, portable electronic games, portable laptop computers, Palm Pilots, etc., are permitted in the courthouse, but MAY NOT be used in courtrooms or jury rooms. Tese items are subject to a security inspection.”24
Tere is no official provision
for lawyers’ use of these devices during trial, so a practical approach would be to request permission from the judge.
Lawyers Lawyers can use social networking and electronic
communications during trial to prosecute their case. By having a laptop and a broadband card (or with a telephone call to the office), a lawyer can perform quick research on potential jurors during voir dire, and on the paneled jury after the close of jury selection. Lawyers should check to see if those jurors belong to groups or are “fans” of any organization that might
23 Proposed Rule 18-XXX can be found at
http://www.mdcourts.gov/rules/agenda/agenda.pdf. 24 United States District Court for the District of Maryland, Court Security
http://www.mdd.
uscourts.gov/courtinfo/security.asp (last visited Nov. 24, 2009).
52 Trial Reporter / Winter 2010
counsel periodically during the trial to ensure that they are not attempting to prejudice the jury improperly. Te jury may see those sites, so counsel must be vigilant to protect the purity of the jury. However, lawyers should be wary of posting information
about the case on their social networking sites and websites immediately before or during trial. Tose posts may raise concerns about tainting the jury given the likelihood that some jurors are likely to defy the court’s instructions against researching the case or the lawyers. Lawyers should ensure before trial that their website does not contain any objectionable content.
Witnesses
At least one court has dismissed a case because of text messaging to the witness stand. In a civil fraud case in the Circuit Court of Miami-Dade County, Florida, the plaintiff ’s employees were sending text messages during the testimony of one of the employees.26
Te judge’s dismissal order noted:
“Nothing this judge has seen holds a candle to plaintiff ’s egregious and deliberate attempts to subvert our justice system. . . . Tis case emphasizes the need for judges and attorneys alike to be vigilant.” Again, counsel must be vigilant, and must pay attention to the actions and movements of witnesses, parties, and counsel in their cases.
Jurors Jurors may be tempted to use internet searching,27
social
networking and electronic communication at multiple times during the course of their jury service. A San Francisco Superior Court judge recently dismissed an entire venire of 600 jurors after discovering that many of them had researched the case.28
Particularly for high-profile cases, would-be jurors
may receive notice of case facts via social networking sites In the Missouri state court case of Gessling v. Ford Motor
25 Even corporations have social networking pages. For example, Ford, Delta Airlines, Johns Hopkins and Howard County, Maryland all have active Twitter pages.
26 Laura Bergus, Texting to the Witness Stand is an “Egregious and Deliberate Attempt to Subvert Our Justice System” (Aug. 18, 2009) <
http://socialmedialawstudent.com/social-media/texting-to-the- witness-stand-is-an-egregious-and-deliberate-attempt-to-subvert-our-justice-system/>. Te dismissal occurred just weeks after a magistrate judge reprimanded another employee of the plaintiff for passing a note to a witness during a deposition.
27 Twitter and Facebook status updates may soon be obtainable by a simple Google or Microsoft Bing search. See Caroline McCarthy, Report: Bing nails search deals with Twitter, Facebook (Oct. 21,
2009) <
http://www.pcworld.com/article/174050/microsoft_bing_strikes_major_search_ integration_deals_with_twitter_facebook.html>.
28
Josh Camson, Courts Cracking Down on Jurors (Sept. 17, 2009) <http://socialmedialawstudent. com/featured/courts-cracking-down/>.
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