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Blawggers respond: Juror may blog jury duty, but not during trial

Yes, Josh Hallett, you may blog about jury duty as long as you don't blog during trial, say blogging attorneys who responded to my post "May jurors blog jury duty?"

I recruited comments from Lauren Gelman, Wendy Seltzer, R. Wilson (whom I don't know), Bob Ambrogi and J. Craig Williams, whose answers expanded this question in important new directions. Read on for their thoughtful exploration of the values and priorities of blogging and jury deliberation, and their shared opinion that these two roles fundamentally clash during trial. At the same time, it's clear that these are people who value blogging, blog themselves and support a juror's right to do so in a way that does not impede, interrupt or corrupt the integrity of a trial-by-jury.

Now I'll let them speak for themselves:

Lauren Gelman, associate director for Stanford Law School's Center for Internet and Society:

"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."

Wendy Seltzer, visiting assistant professor at Brooklyn Law School and blogger of Wendy's Blog: Legal Tags:

"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 account.

"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."

Bob Ambrogi, blogger of Robert Ambrogi's Lawsites and Media Law:

"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 N.H. 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:

"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."

J. Craig Williams, blogger of May It Please The Court:

"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."

Update: Meanwhile, over on Hallett's hyku blog, the blogger who writes Arbitrary and Capricious [brilliant pen name of Skelly Wright] invites his readers to respond to Hallett's "anti-public-defender attitude," writing,

"Any friends of the Ninth Judicial Circuit Public Defender (Orange and Osceola Counties, FL) might want to forward Mr. Hallet's illuminating post, so whoever's in jury trial next week can exercise a well-deserved challenge for cause on this self-satisfied superficial twit. "

Apparently untwitted, Hallett elaborates about his attitude: "Seems he [Skelly] took issue with my comment about a PD in a previous post..." More here.

Anyone else?

Posted by Product Team on October 4, 2005 at 02:59 PM | Permalink | TrackBack (1)


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» Can you blog when serving on a jury? from NevOn
Josh Hallett in Florida might be conducting an interesting experiment - blogging on jury duty. In a series of short posts on Monday, Josh gives a point-by-point commentary of his thoughts and impressions about his jury selection process. Laptops weren't [Read More]

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