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Why Must Social Media be Addressed at Trial?

(Part One of a Two Part Discussion)

Written By: J. Paul Zimmerman, Esq.
Christian & Small
Birmingham, AL

In the current age of digital and social media, juror use of social media is perhaps one of the greatest concerns facing courts and litigants. In Part 1 of this two-part series, Christian & Small Partner J. Paul Zimmerman provides a technical introduction to what social media is and how it works, before discussing in Part 2 some of the problems associated with juror use of social media, including juror misconduct, disregard for courts’ instructions, and impartiality.

Social media has been around in some form for several decades, but usage soared in the early 2000s with the creation of Facebook, Twitter, LinkedIn, Pinterest and blogs. And these social media sites can potentially affect every trial.

Today, social media is frequently the subject of discovery, and attorneys must contend with social media in the courtroom – both in terms of evidence being introduced and with the increasing prevalence of jurors commenting about trial proceedings through their cell phones. And the younger the user, the greater the likelihood of online connectivity. Judges and lawyers who do not use Facebook and do not tweet must still have the ability to address juror perspectives regarding social media and its use.

It is widely recognized that the same rules and requirements of evidence apply to digital communications—but the courts still wrestle with the increasing frequency of jurors communicating through social media during trial and about trial proceedings. Is jury communication through social media any different from the age-old problem of jury misconduct?

Addressing the challenges presented by social media requires appellate guidance and further research regarding jury perceptions of such issues. In the absence of empirical data, judicial remedies will be largely based on assumptions and preconceived notions concerning social media behavior – which may or may not be accurate. Regardless of whether jurors perceive social media differently from traditional communication, juror use of social media presents some different and potentially larger problems than traditional communication. Social media reaches more people with greater speed and its use has become ubiquitous. However, what drives jurors to communicate about the trial via social media may not be any different from the age-old need to prevent outside influence on the outcome of the trial.

Addressing the Source: Social Media Channels – a Primer

Facebook is a popular social networking website that encourages registered users to create profiles, upload photos and video, send messages and keep in touch with friends, family and colleagues. The site, which is available in 37 different languages, includes public features such as:

  • Marketplace – allows members to post, read and respond to classified ads.
  • Groups – allows members who have common interests to find each other and interact.
  • Events  - allows members to publicize an event, invite guests and track who plans to attend.
  • Pages – allows members to create and promote a public page built around a specific topic.
  • Presence technology – allows members to see which contacts are online and chat.

Within each member’s personal profile, there are several key networking components. The most popular is arguably the timeline, which is essentially a virtual bulletin board. Messages left on a member’s timeline can include text, video or photos. Another popular component is the virtual photo album. Photos can be uploaded from the desktop or directly from a cell phone camera. An interactive album feature allows the member’s contacts (who are generically called “friends”) to comment on each other’s photos and identify (tag) people in the photos. Users can freely change the content and the privacy settings of their profile pages, which they use to control who can see the content.

Twitter is a social network and real-time communication service launched in 2006 and used by millions of people and organizations to quickly share and discover information. The word Twitter comes from the frequent chirping sound made by birds, hence the bird used in the Twitter logo. Users can access the site via the web and mobile devices to exchange frequent bite-sized updates of information called “tweets,” which are messages of up to 140 characters that anyone can send or read.

Twitter allows users to “follow” other users that interest them.  Twitter feeds to a user’s homepage the tweets of the people (or organizations) that the user follows.  Updates are essentially in real-time, making the user’s homepage an aggregate feed of all tweeters that the user follows, and tweets can contain things like photos, videos, quotes, article links and more. Though tweets can be made private, these messages are public by default and visible to all those who “follow” the tweeter (or who conduct a search for words found in the tweet, as explained below).  Each tweet can also have replies from other people, creating real-time conversations around hot topics, breaking news, and interesting new content.   They can also be “retweeted,” which is where a user sends out to others a tweet received by the user.

Through retweeting, messages can quickly reach exponentially larger numbers of users.  As a result, Twitter was able to disrupt traditional point-to-point messaging systems like email by providing this one-to-many interface for rapid content delivery and search. This open networking environment has also led to an entire ecosystem built around the Twitter platform coined the “Twitterverse.”  Journalists are now commonly using Twitter to report on trial proceedings from inside the courtroom as they take place.

Words and phrases (both real and contrived) in tweets can be labeled with a “hashtag” (e.g., #socialmedia), which allows a user to rapidly search and retrieve tweets containing that hashtag from throughout the Twitterverse. These tweets are from users with whom the person searching may have previously had no connection.

Several other social media platforms exist, with varying degrees of application and popularity. Younger people have been shying away from Facebook, and moving toward platforms such as Instagram (which uses pictures, rather than searchable text), Snapchat (which is intended to automatically delete after a few seconds), and Vine (posts of short videos). Also, dozens, if not hundreds, of other social media websites target specific industries, hobbies, demographics, or are simply vying to be “the next big thing.”

“Blog” is an abbreviated version of “weblog,” which is a term used to describe Web sites that maintain an ongoing chronicle of information. A blog features diary-type commentary and links to articles on other Web sites, usually presented as a list of entries in reverse chronological order. Many blogs focus on a particular topic, such as politics, web design, home staging, sports, or mobile technology. Some are more eclectic, presenting links to all types of other sites. And others are more like personal journals, presenting the author’s daily life and thoughts.

Generally speaking (although there are exceptions), blogs tend to have a few things in common:

  • A main content area with articles listed chronologically, with the newest on top. Often, the articles are organized into categories.
  • An archive of older articles.
  • A method for people to post comments about the articles.
  • A list of links to other related sites, sometimes called a “blogroll.”
  • One or more “feeds” like RSS, Atom or RDF files.

Rapidly gaining popularity among mostly the younger crowd is Instagram. Similar to Facebook, posts on a user’s Instagram page are limited to pictures and short videos. Even when text is posted, it is in the form of a graphic file. Pictures that are uploaded can be given a title and the titles can be searched. Users can be friends with other users, have access to their pages, and post on each other’s pages.

Through various forms of social media, posted messages can spread quickly through multiple and even exponentially increasing users. Twitter users can “re-tweet” a tweet or send tweets to the user’s own followers. Facebook users can “like,” comment on, or share a post, all of which attract the attention of more users to the post. As more users of social media find a post, the more additional users the post will reach, like an internet version of a chain letter.

 Click here to view Part Two of the series, where Zimmerman will address the dangers of tweeting, posting, sending messages or blogging during trial, as well as offer suggestions for minimizing misconduct and stressing the need for specific jury instructions to address social media concerns.

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