Social Media in the courtroom - New technology a legal balancing act

For the London Free Press - June 29, 2009 Read this on Canoe

We are seeing rapid developments in use of technology in court, including twittering, texting, "Googling," and using Facebook during trial. These tools can be helpful, but can also lead to abuse of the process.

Last month in Ottawa, Chief Justice Douglas Cunningham ruled reporters couldn't use video cameras during the trial of Ottawa Mayor Larry O'Brien, but could report live from court via electronic devices, "so long as any texting is done in an unobtrusive way and does not affect the running of the trial."

"What we are talking about here is instant-text transmission to the blogosphere, but that is the world in which we live," the judge said.

At the Bandidos trial in London, Justice Marc David also allowed use of electronic devices to provide live trial reports. And a U.S. District Court judge recently let a reporter send tweets from court.

Though there have been progressive uses, there have also been questionable uses.

In May, Miami-Dade Circuit Court Judge Scott Silverman declared a mistrial after discovering a witness was texting on the stand. A basic rule forbids witnesses on the stand from communicating with anyone during breaks or recesses, from communicating with anyone. "I never had this happen before," the judge said. "This is completely outrageous."

In Arkansas, a lawyer for a convicted company argued for an appeal on the basis that a juror sent slanderous statements via Twitter during the $12.6-million lawsuit. He argued the Twitter messages showed the juror was biased toward the defendant, causing an unfair trial. The appeal judge disagreed, however, saying while the tweets were in bad taste, they were not considered improper conduct.

In another instance, a judge overturned a conviction and ordered a retrial after a juror used Google to research the crime. The juror also printed out documents found in the search and brought them to the trial.

A British juror used "crowdsourcing" to ask her Facebook friends how she should decide a criminal case. She was taken off the jury.

In North Carolina last September, Judge B. Carlton was reprimanded for "friending" a lawyer in an ongoing child-custody case, reading messages about the litigation, "Googling" the defendant and visiting the defendant's website. The judge later disqualified himself from the case and was publically reprimanded by North Carolina's Judicial Standards Commission.

Trying new technologies in the judicial process, questioning how things are done, and taking innovative approaches are all good things. But we must balance them with some thought about whether it's the right thing to do in the circumstances.

UPDATE: Here's a link to an article in the National Law Journal published on July 1 on the same topic.