It is surprising this has not happened earlier: Two jurors meet and “friend” each other on Facebook during a criminal trial in California State Court. The Criminal Defendant is found guilty. Juror Number Five later informed the Criminal Defense Attorney the Juror Number One (hereinafter the Plaintiff) made comments about the trial on Facebook. Juror No. One v. California, 2011 U.S. Dist. LEXIS 16834 (E.D. Cal. Feb. 14, 2011).
One comment was that Juror Number One was “still” on jury duty and the other he was “’bored’ during the presentation of cell phone record evidence.” Juror No. One, at *1.
The hearing and evidence on juror misconduct ran straight into the Stored Communications Act. The Criminal Defendant issued a subpoena on Facebook for the Plaintiff’s posts. Juror No. One, at *2. Facebook refused because of the Stored Communications Act. Id.
The Criminal Defendant than issued a subpoena directly to the Plaintiff for the Facebook material. Juror No. One, at *2. The Court quashed the subpoena because it was overly broad. Id.
The Court ultimately ordered the Plaintiff to “execute a consent form sufficient to satisfy the exception stated in [the Stored Communications Act] Title 18, U.S.C. section 2702(b) allowing Facebook to supply the postings made by Juror # 1 during trial.” Juror No. One, at *2.
The Plaintiff filed a Writ of Prohibition in the California Court of Appeal, which was denied. An appeal is pending before the California Supreme Court. Juror No. One, at *3.
The Plaintiff sought a temporary restraining order from Federal Court on the grounds that the consent form would violate his Fourth Amendment right to privacy; Fifth Amendment right against self-incrimination; the Electronic Communications Act; the California Constitution, plus other California statutes. Juror No. One, at *3.
The Federal Court abstained from ruling on the temporary restraining order, because there was no evidence the California Supreme Court would not take the appeal. The only evidence of the California Supreme Court not acting on the Plaintiff’s appeal were based on phone calls to clerks at the California Supreme Court.
Bow Tie Thoughts
Juror conduct (or misconduct) goes to the heart of our judicial system. Judges and Attorneys should inform jurors that posting about a case on Twitter, Facebook or any social media forum is not acceptable.
The issue of whether ordering someone to consent and waive their Stored Communication Act rights is an interesting one. Whether that violates the Fourth and Fifth Amendments will one day be decided.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016, the Web 100 from 2017 to 2018, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.