OMG, The Judge Can See My Posts

The Constitution provides no privacy protections for jurors who misuse social media to comment on a case during the trial.  Jurors will find trial judges have the right to rummage through their Facebook accounts or text messages if they violate a court’s non-communication order, a state court of appeal ruled.

A jury foreman accused of misusing social media to comment online during the two-month trial of five Sacramento gang members must turn over all his Facebook postings to the court, as a result of the precedent-setting Third District Court of Appeal order.

The central question is whether trial judges, as part of their inherent power to control trials, have the authority to order disclosure of messages posted during trial by a juror.  In this case, the juror was found to have engaged in misconduct.

The Sacramento-based appeal court said a demand to surrender Facebook account postings is necessary to determine if the comments were prejudicial to the defense.

Identified only as Juror Number One, the foreman challenged the court order that he sign a consent to release postings he made during the trial as part of a juror misconduct investigation.

He argued the order violates the Stored Communications Act, his constitutional privacy rights and fifth amendment right against self-incrimination.

The juror’s privacy interest in his Facebook posts, if they exist, are not absolute, according to Justice Harry Hull, Jr.

A privacy interest “must be balanced against the rights [of the defendants] to a fair trial,” rights that may be implicated by juror misconduct, according to Hull.  He also held that the juror’s Fifth Amendment claims were “speculative.”

During a 2010 trial of five Killa Mobb gang members accused of a vicious Halloween night beating of a young man in 2008, the foreman posted comments about the evidence on his Facebook Wall.   He also invited his online “friends” with access to the page to respond.

The defense for one defendant, Demetrius Royster, pursued the juror misconduct inquiry after the trial ended in convictions.

Another juror said she learned about the Facebook postings after the trial when the foreman gave her access to his Facebook musings.

Juror Number One admitted that he posted items on Facebook about the trial while it was in progress, despite court admonitions not to discuss the case.  But he argued they contained nothing about the case or the evidence and merely indicated he was still on jury duty.

He did say that he posted on one trial day that the case was “boring” that day and he almost fell asleep.  He denied reading any responses he received from his friends to the posts.

He argued the trial judge had authority to ask him about whether he posted comments about the case and if he read replies, but could not demand to see the postings themselves.

Hull rejected the arguments.  “It must be remembered that those posts are not just potential evidence of misconduct.  They are the misconduct,” he said.

The court ordered the stay lifted, clearing the way for the trial judge to order Juror Number One to file a consent for authorizing Facebook to release all his postings during the two-month trial for the judge to review.

Juror Number One v. Superior Court of Sacramento County,  No. C067309



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