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May jurors blog jury duty?

And now for a pressing question from the audience. I invite interested legal bloggers -- particularly free speech advocates, litigators, public defenders, district attorneys and experts in criminal defense -- to turn their heads, however momentarily, from the fracas surrounding Harriet Miers' nomination to the Supreme Court, and address this question:

May jurors blog jury duty?

Meet Blogger Josh Hallett, who poses this question on his blog, hyku. I became aware of Hallett's question when Jay Rosen (who blogs Pressthink) introduced us earlier today via e-mail. Here's how Hallett explains his situation:

"I have jury duty the week of October 17. The question is can I blog it? I did a quick search for "jury duty" and found some people that blogged about it. Most of them appear to be after-the-fact though.

"I asked a friend and his reponse was, The biggest benefit of blogging the jury process is that telling the lawyers what you're doing is likely to get you excused!

"The last time I was selected it was amazing to witness the ineptness of the public defender. Sitting in the jury box I was saying to myself, "Why doesn't he ask. ..." Later during a recess some of the other jurors talked about how watching all the legal shows on TV made them think they were smarter than the PD. (Note to self, don't let a PD handle your case)

"I know I can't talk about a case during the trial (if I am selected), but what about the rest of the process? Any lawyers out there want to answer this one?"

I tried to find an answer to this question. Surfing around the blogosphere, I found lots of jurors who blog, but no definitive answers. It sounds like the question is circumvented by the lack of Wi-Fi love in American courtrooms:

• In Cory Bergman's post on Lost Remote, he pulls jury duty and learns "Blogging is out." (He has a funny riff on his horror at learning that Seattle's waiting room for potential jurors wasn't Wi-Fi equipped.) Same with Janet of Marqui: "I'm not allowed to talk about the case at all, until it's over. "
• Happy Scapula blogs an excellent three-part series on jury duty (read Part 1, Part 2 and Part 3) but only after the fact.
• Most posts sound more like Arthur Chaparayan, who, blogging from Internet Kiosk #2 at the Los Angeles Superior Court in June, sounds simply happy to be online, off the job and reaching out to his friends.

I invite legal bloggers to answer Josh's question, along with a few more worth considering:

1. May jurors blog jury duty?

2. If no, do you mean before, during or after the trial? Why not? Are there any conflicts between a defendant's right to a fair trial and a blogger's First Amendment rights? Please specifically address any harm that you feel could come to the proceedings by having a juror live-blog a trial.

3. If yes, why and under what circumstances may a blogger blog the trial before, during and after the proceedings? Please specifically address why you feel there are no conflicts between a defendant' right to a fair trial and a blogger's First Amendment rights. Please address any benefit that you feel could come to the proceedings by having a juror live-blog a trial. Also, please consider: Are comments and trackbacks allowed and/or forbidden? If allowed, could a blogger read these comments? May a blogger blog an entire record of events after the fact, including full detail on names? How about audio and/or photographs? What digital record may bloggers take of the proceedings?

I welcome your answers below. Thanks.

Posted by Jennifer Moline on October 3, 2005 at 12:56 PM | Permalink | Comments (8) | TrackBack (0)

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I don't think bloggers should blog jury duty until after their service has concluded. A long history of thinking about the role of juries has led to the rules we have- deliberate only amongst the jury with information selected by the advocates and vetted by the judge. This is a completely different model than the deliberation that occurs in the blogosphere. Interestingly, the press comparison in this case does not work, because the press has greater access to information about the trial than jurors do. Access to information by jurors is purposely limited.

So I'd be happy to endorse bloggers playing the same role that journalists do in court proceedings (access and timely reporting), but I don't think the rules that apply to jurors should change if one happens to be a blogger or journalist.

Posted by: Lauren Gelman | Oct 3, 2005 9:41:54 PM

I agree with Lauren here. Bloggers are free to report on other trials, in which they're not jurors, but they shouldn't attempt to be both judge and witness when called for jury duty.

Real-time reporting from within the jury box could hurt the dynamic of the jury, where jurors are supposed to decide facts based on evidence presented to them, in deliberations with their fellow jurors. For example, someone who had publicly blogged a position based on opening statements might be more reluctant to shift his or her opinion to take later evidence into acccount.

Trackbacks or comments on a blog could be even greater concern: We deliberately shield jurors from some facts, such as evidence gathered in violation of Fourth Amendment protections, and ask them not to discuss pending cases with the outside public.

After the trial concludes, I think it can be blogged -- respectful of other jurors' privacy and any limits set by the judge.

Posted by: Wendy Seltzer | Oct 4, 2005 6:36:00 AM

Juror can’t blog their jury service in real time. Every jury is given a standard instruction at the beginning of a trial to the effect they are not to discuss anything about the trial with other jurors (or anyone) until they have heard all the evidence, heard all of the parties' arguments, and the instructions on the law from the judge. To blog in real time about one's jury service would be to "discuss" the case. It matters not that the juror is technically not discussing the case with other people, but just opining in cyberspace. The "evil" sought to be avoided by the requirement is our tendency to hold fast to beliefs and opinions once we have openly expressed them. A verdict is to be returned only after a jury deliberates, starting from a blank slate, upon the three items (the evidence, the arguments, and the jury instructions). If one blogs their jury service in real time, they are "discussing" the matter and forming opinions which are not based upon all the three items mentioned above. Then, having taken a stand, and in a blog, done so publically, it makes it less likely they be open to changing that opinion during the deliberations.

Posted by: R. Wilson | Oct 4, 2005 7:22:06 AM

I generally agree with the comments above about blogging during trial, although I could imagine cases and circumstances where blogging would be unlikely to have an impact on the fairness of the trial.

The balance is between the right to a fair trial and the right of free speech. Many factors come into play. Is it a grand jury? Is it a criminal or a civil trial? Will the jury be sequestered? Is there a need to protect jurors' identities? Is it state court or federal court. Who is the judge?

(I blogged an article about a case in NH in which the defense lawyer claimed a juror's blogging during trial -- not precisely about the trial, as I recall -- denied his client a fair trial, but the link is now dead and I can't find the article. My post was here: http://www.legaline.com/2005/03/did-jurors-blogging-taint-trial.html)

Generally, the answer about blogging jury duty would be: Yes after trial, no during trial, maybe before trial. Let's break it down into phases.

After the trial is over, a juror would be free to blog about jury duty. In a sensational case, a judge may impose a gag order on jurors, but it would be unlikely to pass constitutional muster. I could imagine circumstances where a judge may want to limit what jurors reveal about other jurors' comments or actions in the jury room. I don't know offhand whether this has been tested.

During trial, it is common for judges to admonish jurors not to discuss the case publicly. The reasoning is that jurors' public comments and discussions may interfere with a fair trial. To my mind, there is no reason to apply this rule to all cases without exception, but courts seem to apply it pretty much across the board. Another consideration is that, if the jurors are sequestered, most likely they are blocked from using the Internet.

Before trial, there may be two phases to consider. First is the general waiting-around phase. Jurors get called in, herded into a big room, and told to wait, with no idea of what is going on. I can't see any legal reason why a juror could not blog about this. I can see a technological reason, which is that many courts do not allow jurors or anyone else to bring electronic devices into the courthouse without advance permission. For example, the U.S. District Court in Mass. prohibits "cellular phones, cameras, computers, recorders, etc."

During empanelment and voir dire, I would imagine judges would have the same concern about ensuring a fair trial as during the trial itself. I would suspect judges would not permit blogging about voir dire.

On a practical note, it doesn't hurt to call the court's jury coordinator and ask about bringing and using electronic devices. Given the First Amendment, I would presume the right to blog unless and until told otherwise.

Posted by: Robert Ambrogi | Oct 4, 2005 8:24:55 AM

Thank you for the feedback! I'm going to blog these comments now so that they're picked up in the Law.com newsletter.

J. Craig Williams also sent me this response via email:

"Your post today poses the question about blogging jury duty. The question has been settled since we instituted the jury system, probably back to when the old English system started, but I haven't done that research.

Reporters who sit on juries are not allowed to report their experience simultaneously with jury duty, and I'd be very surprised if bloggers would somehow fit within an exception.

When you sit as a juror, you are not permitted to discuss the case with anyone during the trial. This prohibition prevents jurors from making pacts to decide cases a particular way or prejudging a case. As a juror, you must wait until all the evidence is in before you can make up your mind, and then you must participate in the deliberative process with the other jurors, discussing everyone's impression of the evidence, and its consequences. That way, the group of jurors make the decision, not any one or any subgroup of people.

As either a reporter or a blogger, your right to free speech is outweighed by the Defendant's right to a fair trial. At most, it amounts to a temporary restriction (time and manner, which are constitutionally permitted). You can write about your impressions before (if you do, however, you'll likely not make it on the jury) or after. There are few times that a court imposes such restrictions on jurors (perhaps for their own safety in gang or mafia trials) after a trial.

Sometimes, you just can't wear two hats at once, and have to take one off.

Reporters and bloggers are allowed in the courtroom to report and blog a trial, and they view the evidence the same way that a jury does, so there's no overall impingement of first amendment freedoms and the public's right to know is fully protected. News reporters/bloggers just can't sit on a jury at the same time."

Posted by: Lisa Stone | Oct 4, 2005 11:02:05 AM

The defendant failed to appear for trial :-(

I recorded some thoughts about the jury selection process and posted them online: http://hyku.com/blog/archives/000843.html

Posted by: Josh Hallett | Oct 20, 2005 6:34:38 AM

I've got a more interesting situation that is ongoing as of Nov 2007.

I'm being sued for $35 million by a crazy woman in NYS Supreme Court in Manhattan. As a defendant, I've posted my dislike of the lawyer (I'm pro se), search for "harvey s. mars" (harvey mars).

I've said he should be hung by his balls for taking advantage of a psychotic woman, etc. It's stated in question form or as an opinion, protecting my speech from defamation.

But he's filed an OSC (Order to Show Cause) for criminal sanctions (in this civil case) for my posts because he feels harassed and that I'm intimidating possible witnesses (Dr. Moinuddin Sarker and June Metz). Funny how he didn't mention Karin Kaufman.

This is a really strange situation. Karin Kaufman is one of three daughters of real estate mogul Melvyn Kaufman, who has a portfolio of buildings in the NYC area worth over $200 million.

Karin has a history of ceasing to take her meds (such as Haldol) and going psychotic. The family parked her in a house in Westchester County and didn't check up on her. Eventually she stopped taking her meds, went nuts again, and started a series of businesses, including a research laboratory.

The OSC is on hold momentarily, see my web site.

http://psychotic-karin-kaufman.org

Posted by: Eric Blair | Nov 18, 2007 7:00:28 PM

I just wanted to update the previous post: the pro-se defendant has won!

Harvey Mars

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Posted by: Harvey Mars | May 5, 2008 8:19:29 AM

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