November 11, 2013 Top Story

Facebook Communication Leads Court to Vacate Murder Conviction

Court should have allowed inquiry into juror-witness Facebook contact

Bethany Leigh Rabe

Unexamined Facebook communication between a juror and a witness during trial has led the Tennessee Supreme Court to vacate [PDF] a murder conviction and remand the case. This remand, with instructions to the trial court to hold an evidentiary hearing on the nature and extent of the communication, opens the possibility of a new trial for the criminal defendant. Section leaders caution that in the age of social media, lawyers and judges must place extra emphasis on instructing the jury as to what is and is not permitted.

A Murder Conviction Vacated 

A defendant was facing trial for the murder of a woman with whom he had lived. In the jury selection process, the court warned the potential jurors about searching for outside information about the trial, and during the preliminary instructions, the court told the jurors not to talk with any witnesses in the case.

During trial, a witness testified that the defendant told her he had accidentally shot the victim during an argument and that his gun had gone off a second time when he was trying to move the body. The state offered testimony from a Vanderbilt-trained assistant medical examiner, Dr. Adele Lewis, that the death was a homicide.

After Dr. Lewis testified, she received a Facebook message from one of the jurors, a grants manager at Vanderbilt. The grants manager wrote: “A-dele!! I thought you did a great job today on the witness stand . . . was in the jury . . . not sure if you recognized me or not!! You really explained things so great!!” Dr. Lewis replied, “I was thinking that was you. There is a risk of a mistrial if that gets out.” The grants manager responded, “I know . . . I didn’t say anything about you . . . there are 3 of us on the jury from Vandy and one is a physician (cardiologist) so you may know him as well. It has been an interesting case to say the least.”

Dr. Lewis then emailed the judge to inform him of the communication; the judge informed the attorneys but took no other action. The jury found the defendant guilty. After the jury was excused, counsel for the defendant requested that the court make further inquiry into communications between the witness and the juror. The court declined and sentenced the defendant to life in prison.

The court denied the defendant’s motion for a new trial, which was based in part on the defendant being denied a fair trial because the court forbade him from questioning the juror about the communication with Dr. Lewis. The Tennessee Court of Criminal Appeals upheld [PDF] the trial court’s decision not to question the juror. The Tennessee Supreme Court disagreed, however, remanding the case for a hearing on the nature and extent of the communications between Dr. Lewis and the juror.

Informing the Parties of the Communication Is Not Enough

In reversing the decision, the Tennessee Supreme Court focused on the trial court’s decision not to conduct a hearing or otherwise inquire into the circumstances of the Facebook communications. “When the trial court received competent and reliable evidence that an extra-judicial communication between a juror and a state’s witness had taken place during the trial, it was required to do more than simply inform the parties about the email and then await the jury’s verdict,” the court explained. Instead, the court continued, the trial court should have “immediately conduct[ed] a hearing in open court to obtain all the relevant facts,” to include possibly calling the juror and Dr. Lewis to testify under oath about their relationship and its effect on the juror’s ability to serve. Testimony from other jurors might also be required as to whether the juror shared any information with the other jurors, the court reasoned.

Section leaders agree with the decision. “At a minimum, the judge should have taken some curative action,” offers Andre Caldwell, Oklahoma City, OK, cochair for Roundtables of the ABA Section of Litigation’s Trial Evidence Committee. A juror’s failure to follow a judge’s instruction to refrain from contact with anyone involved in the trial is a serious matter that “creates doubt as to that juror’s ability to fairly and competently follow the law when deliberating on an important issue such as the freedom of an individual,” Caldwell opines. Jurors doing outside research or communicating with others about the trial can taint the process in other ways as well, he explains, as “the affected juror may believe that one of the parties intentionally withheld information from the jury despite its ‘relevance’ and thus distrust that party.”

Stopping Juror Misconduct Before It Starts

How can lawyers and judges get this issue right on the front end before improper conduct occurs? The court suggests that “[t]rial courts should give jurors specific, understandable instructions that prohibit extra-judicial communications with third parties and the use of technology to obtain facts that have not been presented in evidence.” What would this look like? “Instructions that clearly and explicitly reference social media platforms, such as Twitter, Facebook, Instagram, and blogs—perhaps that even provide examples of conduct on those platforms that would not be in keeping with the duty to be impartial—would assist the jury in understanding the full reach of prohibited behavior,” suggests Emily Crandall Harlan, Washington, DC, vice chair of the Section of Litigation’s Criminal Litigation Committee.

Harlan cautions against a general instruction that simply warns jurors not to conduct outside research, suggesting that specific reference to the Internet is key. “Jurors are more likely to absorb and appreciate these limitations if given specific and relatable examples of behaviors to avoid. In essence, the more specific the better, especially when the alternative is a mistrial.”

Caldwell suggests that lawyers may emphasize the issue by reiterating instructions given by the judge, but cautions lawyers not to sound like “a parent lecturing a child,” or the jury may be put off. He recommends focusing on the big picture—that the process is important, and that “it can’t work if any of the players involved operate outside of the boundaries of the rules.”

Bethany Leigh Rabe is an associate editor for Litigation News.

Keywords: juries, extrajudicial communication, Facebook, social media, trial practice

Related Resources

  • Katie L. Dysart and Camalla M. Kimbrough, “#Justice? Social Media’s Impact on the U.S. Jury System,” Trial Evidence Committee (August 2013).
  • Peter H. Geraghty, “Facebook: Monitoring Juror Social Media Networking Sites; “Friending” Employees of Adverse Parties,” YourABA (November 2011).

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