Reversal of Conviction Because Undisclosed MySpace Friendship Between Defendant and Juror

Brian Peterson posts on a fascinating West Virginia Supreme Court of Appeals decision involving the use of social media between a juror and defendant and the issue of disclosure of such connections during voir dire.

In State v. Dellinger, No 3573 (W.Va. Supr. Ct. June 3, 2010) (PDF version) the West Virginia Supreme Court reversed a felony conviction of a Braxton County Sheriff due to a juror's "complete lack of candor" during voir dire. The juror and defendant were MySpace friends, but hardly knew each other. The Court found that the juror should have disclosed the relationship.

The Court describes the juror misconduct as follows:

At the direction of the trial judge, an investigation into alleged juror misconduct was conducted concerning Juror Amber Hyre. During the course of the investigation and at the June 11, 2008, hearing, it was learned that on February 7, 2008, approximately one week before Appellant's trial began, Juror Hyre sent a message to Appellant on “www.MySpace.com,” a social networking website. In that message, Juror Hyre, known as “Amber,” wrote to Appellant:

Hey, I dont know you very well But I think you could use some advice! I havent been in your shoes for a long time but I can tell ya that God has a plan for you and your life. You might not understand why you are hurting right now but when you look back on it, it will make perfect sence. I know it is hard but just remember that God is perfect and has the most perfect plan for your life. Talk soon!

According to Juror Hyre, after she sent this message to Appellant, the two became MySpace “friends,” which allowed Appellant to view postings on Juror Hyre's MySpace page and vice versa.

At the end of the decision, the Court in footnote 11 highlights the need for lawyers and judges to instruct jurors of their responsibility and provides a cautionary note to them about using technology during the trial process and deliberation. The Court provides a link to the model jury instruction developed by the Committee on Court Administration and Case Management of the Judicial Conference of the United States. I previously blogged about this Model Jury Instruction here.

The footnote reads:

As noted above, Juror Hyre posted a message on her MySpace page during the course of the trial in which she wrote, “Amber Just got home from Court and getting ready to get James and Head to church! Then back to court in the morning!” Next to “mood,” she wrote the word “blah.” The trial court found that Juror Hyre “did not state which trial she was hearing or any facts or opinions about the trial.” Though this Court does not condone any communication about a case by a sitting juror, we agree with the trial court's apparent finding that Juror Hyre's posting was benign in nature. We believe that, standing alone, it was not sufficient to find that she engaged in juror misconduct. However, we also believe some cautionary words are warranted concerning the prominent presence of the internet and routine use of and dependence upon various technologies by everyday Americans called to jury service. In an effort to preclude jurors from using cell phones, computers and social media websites such as MySpace, the Committee on Court Administration and Case Management of the Judicial Conference of the United States has endorsed a model jury instruction for federal district court judges to help deter jurors from using such technology for improper purposes (such as communicating about their case or conducting their own research). [Rules for Jurors: No Talking, Texting, Tweeting,] The National Law Journal, February 9, 2010, available at http//www.law.com/jsp/law technologynews/PubArticleLTN.jsp?id=1202442983764. For example, the jury instruction to be given before trial cautions, inter alia:
I know that many of you use cell phones, Blackberries, the internet and other tools of technology. You also must not talk to anyone about this case or use these tools to communicate electronically with anyone about the case. . . .You may not communicate with anyone about the case on your cell phone, through e-mail, Blackberry, iPhone, text messaging, or on Twitter, through any blog or website, through any internet chat room, or by way of any other social networking websites, including Facebook, MySpace, LinkedIn, and YouTube.”

The jury instruction to be given at the close of the case similarly provides:
During your deliberations, you must not communicate with or provide any information to anyone by any means about this case. You may not use any electronic device or media, such as a telephone, cell phone, smart phone, iPhone, Blackberry or computer; the internet, any internet service, or any text or instant messaging service; or any internet chat room, blog, or website such as FaceBook, MySpace, LinkedIn, YouTube or Twitter, to communicate to anyone any information about this case or to conduct any research about this case until I accept your verdict.

We note that, presently, there are no similar uniform standards for jurors in state trials. Id.

Lesson: If you are called for jury duty be sure to review all your MySpace, Facebook, Twitter, etc. contacts to make sure you have no connection to the parties in the matter. The case also highlights that technology has allowed all of us to develop new (more extended, not necessarily deeper) relationships with people that we don't really consider part of our "in person" social circle.The case also points out that jurors need to "go off the grid" during trial and deliberation process.

To get the full context of what occurred I recommend reading the full decision. Also, jump over to Brian's blog post to read more of his comments on the decision. I agree with his conclusion, "It's clear that voir dire and jury instructions need to catch up with technology."

UPDATE (6/15/10): Eric Goldman at the Technology & Marketing Blog and Molly DiBianca at Going Paperless provides additional analysis and thoughts on the decision.

UPDATE (6/18/2010): Ry Rivard at the Charleston Daily Mail covers the decision in his story, Web stirs problems in jury selection.