How Blogging Affects Legal Proceedings

Technology has entered the jury box. While the press has long reported on pending trials, bloggers ' or so-called “citizen journalists,” some sitting in juries ' have increasingly posted commentary about judicial proceedings. Yet recent events suggest that blog posts and other electronic communications by jurors about ongoing trials can potentially disrupt the integrity of the proceedings.

Indeed, several months ago, defense lawyers in a federal political corruption trial in Pennsylvania announced plans to appeal a guilty verdict based, in part, on the fact that a juror posted remarks about the trial and the jury's deliberations to Facebook and Twitter.

Similarly, a construction materials company recently appealed a $12.6 million verdict in an Arkansas case because one juror posted short messages on Twitter during the trial that allegedly exhibited bias against the company. See generally, Schwartz, “As Jurors Turn to Web, Mistrials Are Popping Up,” New York Times (March 17, 2009).

With the new generation of mobile devices with wireless e-mail capability, jurors may be tempted to post thoughts about the ongoing jury experience, despite explicit instructions to avoid discussing the trial with outside parties.

Jury Instructions

Given this new technological reality, counsel and judges have adapted jury instructions that include specific charges against blogging or posting online comments about a pending trial. Trial attorneys also have started to routinely monitor pretrial and post-trial publicity on the Internet to determine whether jurors or others had blogged or posted online comments about the trial that might reveal pretrial bias. Beyond jurors, counsel and judges need to be aware how their own blogging practices are impacted by professional ethical standards.

Generally speaking, a blog is an application that displays periodic written or video posts on a common Web page. Essentially, a blog serves as a public journal for one or more contributors on general interest or niche topics, or more often, simply details events in the author's daily life.

Blogs often permit readers to post comments or images to foster an open forum of lively discussion. A blog may exist as an independent Web site, a separate Web page on an individual's or company's existing site, or be part of an online social network member's personal page.

Moreover, with the growing popularity of Twitter, a social networking and microblogging site that allows users to make posts or “tweets” of up to 140 characters in length, the ability to deliver quick, contemporaneous opinions away from the computer has become even easier.

Emerging Litigation

In fulfilling their service, jurors must deliberate only with the evidence received in open court, not from outside sources or through extraneous communications with outside parties. A presumption of prejudice arises where a juror speaks with a third party about the case or communicates with any person who is associated with, or has an interest in, the outcome of the case. United States v. O'Brien, 972 F.2d 12, 14 (1st Cir. 1992).

When jurors blog about ongoing trials, there are several key considerations: Did the jurors discuss details of the trial? Did the jurors display a pretrial bias for or against one party? Did fellow sitting jurors read the blog or electronic communication during the trial and thus become unduly influenced?

Under certain circumstances, posting to a blog during a pending trial may constitute prejudicial extrinsic communications. As some commentators have noted, the contents of a blog could show prejudgment, prejudice or the formation of opinions not based upon evidence admitted at trial such that a court might deem the juror unable to set aside possible biases and complete the role of impartial arbiter. See, e.g., comments of Wendy Seltzer, law professor and legal blogger, at “Blawggers Respond: Juror May Blog Jury Duty, but Not During Trial,” Legal Blog Watch (Oct. 4, 2005; last visited April 27, 2009). (“[S]omeone who had publicly blogged a position based on opening statements might be more reluctant to shift his or her opinion to take later evidence into account.”) Beyond blogging about the trial, courts are also concerned about jurors conducting their own Internet research about the trial. See, e.g., United States v. Siegelman, 2009 WL 564659 (11th Cir. March 6, 2009 (request for mistrial based upon juror's online research denied in light of the government's substantial case and the jury's reasoned verdict.)

Recent decisions illustrate that blogging can impact legal proceedings by interfering with a fair trial and impartial jury. In one case, following a guilty verdict, defense counsel learned the jury foreman had blogged about his upcoming jury service, expressing general bias against criminal defendants as well as a possible mistaken belief regarding a criminal defendant's presumption of innocence.

Reviewing the conviction, the New Hampshire Supreme Court denied the defendant's motion to set aside the verdict, finding that the juror understood the need to follow the court's instructions and that, in any case, none of the juror's postings were presumptively prejudicial against the defendant. State v. Goupil, 908 A.2d 1256 (2006).

The defendant subsequently sought review in federal court, asserting that he was denied his constitutionally guaranteed right to a fair and impartial jury.

In dismissing the defendant's habeas corpus petition, a New Hampshire district court reasoned that none of the blogging juror's pretrial personal opinions constituted extraneous influence that would give rise to a presumption of prejudice because none of his fellow sitting jurors read or even were aware of the blog during the trial. Goupil v. Cattell, 2008 U.S. Dist. LEXIS 14774 at 20 (Feb. 26, 2008).

Furthermore, the court found that the blogging juror's pretrial comments were generalized commentary on the criminal process, not about the ongoing trial, and too non-specific for a court to deem presumptively prejudicial. Ultimately, the court found nothing to suggest the juror in question failed to follow the trial court's instructions and was unable to consider impartially the evidence presented.

Similarly, in State of Ohio v. Goehring, 2007 Ohio App. LEXIS 5169 (Nov. 2, 2007), an Ohio appellate court affirmed a lower court's denial of defendant's motion for a new trial based on a juror having posted comments about the trial on his blog that outlined the details of the case and allegedly showed that he “pre-decided” the verdict.

As in Goupil, defense counsel found the juror's blog while performing an Internet research following the verdict. After holding a hearing, the trial court determined the comments did not express any bias as to a guilty or not guilty verdict and that his detailed discussion of the case was made post-verdict, when he could speak freely.

The appellate court affirmed, concluding that the juror, while opinionated, did not express any discernible bias against the defendant and had even offhandedly mentioned in his blog post on the first day of the trial that he was prohibited from discussing the case. Moreover, the court found there was no evidence the other jurors had read the blog.

Notably, the Goupil and Goehring courts found that the other sitting jurors were not aware of the blog posts in question and that the Goupil foreman's posts received no comments. In short, these decisions suggest that if sitting jurors read a fellow juror's posts during the trial, it might constitute extrinsic communications that would taint and improperly influence the jury panel. Similarly, if a blogging juror reads and responds to an outside reader's comments, such interaction could potentially give rise to a presumption of prejudice based upon such extrinsic communications. See, e.g., Commonwealth v. Guisti, 449 Mass. 1018 (Mass. 2007: juror posted e-mail detailing trial on the Internet and received two online comments advising the juror to refrain from discussing the case; court concluded that the juror and jury panel as a whole was not subject to extraneous influence and could not be the basis for a mistrial.)

In addition to blogging jurors, postings by trial reporters can unearth potential juror misconduct. In United States v. CITGO Petroleum Corp., 2007 U.S. Dist. LEXIS 85341 (S.D. Tex. Nov. 19, 2007), the commentary of a blogger covering a criminal trial hinted that she had knowledge of juror statements made during deliberations, raising vague allegations of jury tampering.

The court ruled the blogger's posts incorporated an element of fantasy that did not credibly support a likelihood of tampering. Although speculative claims of juror exposure to extrinsic influence generally do not require a “full blown evidentiary hearing,” the court nonetheless ruled that the allegations justified further investigation and granted leave to defense counsel to take the blogger's deposition.

[Editor's Note: Some judges are permitting members of the press to Twitter from the courtroom. See, "Twittering in Federal Court" in the May '09 issue of Internet Law & Strategy, available at www.ljnonline.com/issues/ljn_internetlaw/7_5/news/152151-1.html.]

Counsel, Judicial Comments

In addition to jurors, blogs have proven popular with attorneys for marketing purposes and academic discussion of specific practice areas. Although some bar associations have undertaken to address attorney blogs, they have principally confined their efforts to blogging as it relates to legal advertising.

For example, under the New York Rules of Professional Conduct, newsletters, client alerts and blogs intending to educate recipients about new legal developments would generally not be considered advertising. But a blog primarily about a lawyer or law firm, heralding clients or recent achievements, generally would be deemed advertising subject to rules of professional conduct. See, New York Rules of Prof'l Conduct R. 7.1 cmt. [7] (eff. April 1, 2009).

Most recently, a firm in Louisiana has challenged the constitutionality of new attorney advertising rules that allegedly would restrict attorneys from posting comments to blogs and social network sites, and from acting as guest bloggers on other attorney's sites. See, Weiss, “Lawyer Ad Rules May Bar Blogging, La. Law Firm Says in Suit and Blog,” ABA Journal (Nov. 24, 2008).

Existing attorney ethical rules concerning trial publicity and other communications generally address blogging as it relates to public communications by attorneys. For example, ABA Model Rule 3.6(a) precludes attorneys from making extrajudicial statements that will be “disseminated by means of public communication” and have a “substantial likelihood of materially prejudicing” a legal proceeding. ABA Model Rules of Prof'l Conduct R. 3.6(a).

This rule suggests that an ethics committee or court would examine an attorney's blog concerning ongoing litigation similar to a press release or newspaper interview because the blog itself would likely be deemed another example of a means of public communication. For example, a California Superior Court judge reprimanded a temporary prosecutor for his blogging about a pending case. However, the judge did not find the prosecutor's remarks sufficiently prejudicial to dismiss the case. See, Smith, “Judge Reprimands Temp Prosecutor for Personal Blog,” The Recorder (April 28, 2006).

However, ABA Model Rule 3.6(c) permits an attorney to “protect a client from the substantial undue prejudicial effect of recent publicity” initiated by a third party. This carve-out for extrajudicial statements enables attorneys to respond to public statements about their clients by third parties. If a third party's blog post or comment is adversely prejudicial to an attorney's client, the carve-out conceivably would allow the attorney to respond defensively through a rebuttal comment or a posting to that attorney's own blog, if a reasonable lawyer would believe a mitigating response is required.

Rules for Judges

As with attorneys, ethical rules also bind judges. It is clearly established that maintaining “the appearance of impartiality of the judiciary is an interest of vital importance.” Kirchgessner v. Wilentz, 884 F. Supp. 901, 912 (D.N.J. 1995).

For example, Canon 3A of the Code of Conduct for United States Judges, which applies to federal court judges, states that judges should “neither initiate nor consider ex parte communications on the merits” and avoid public commentary on the merits of a pending or impending action. Code of Conduct for United States Judges Canon 3A(4), (6).

A plain reading of this rule appears to prohibit judges from blogging about ongoing matters; merely reading blogs by, or regarding parties to, pending proceedings before them could also raise allegations of personal bias from extrajudicial sources. See, Netbula v. Storage Tech. Corp., 2008 U.S. Dist. LEXIS 12182 (N.D. Cal. Feb. 8, 2008).

Canon 4A of the Code of Conduct allows judges to “speak, write, teach ' and participate in other activities concerning the law” as long as it does not cast “reasonable doubt on the capacity to decide impartially.” Thus, the rule would allow a judge to blog about legal issues of the day or non-legal issues that do not concern current or impending litigation in any court, or involve the endorsement of political candidates.

Accordingly, Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit is co-author of a blog about economics, law and policy, but clearly states that “the rules of judicial ethics preclude [me] from commenting publicly on pending or impending litigation.” Introduction to the Becker-Posner Blog (last visited April 27, 2009). See also, Lessig Blog, “When Judicial Lips Are Sealed” (Aug. 22, 2004; last visited April 27, 2009).

Interestingly, however, a state administrative special education hearing officer was recently terminated for blogging about topics that were before her as a hearing officer. A district court upheld her removal. See, Stengle v. Office of Dispute Resolution, 2009 WL 1138119 (M.D. Pa. April 27, 2009).

The court found that given her blog posts, which offered criticism about the school district and administrative policies, the hearing officer's impartiality had come into question, prompting parties to request her recusal in multiple matters and causing disruption to the school district.

Technology has entered the jury box. While the press has long reported on pending trials, bloggers ' or so-called “citizen journalists,” some sitting in juries ' have increasingly posted commentary about judicial proceedings. Yet recent events suggest that blog posts and other electronic communications by jurors about ongoing trials can potentially disrupt the integrity of the proceedings.

Indeed, several months ago, defense lawyers in a federal political corruption trial in Pennsylvania announced plans to appeal a guilty verdict based, in part, on the fact that a juror posted remarks about the trial and the jury's deliberations to Facebook and Twitter.

Similarly, a construction materials company recently appealed a $12.6 million verdict in an Arkansas case because one juror posted short messages on Twitter during the trial that allegedly exhibited bias against the company. See generally, Schwartz, “As Jurors Turn to Web, Mistrials Are Popping Up,” New York Times (March 17, 2009).

With the new generation of mobile devices with wireless e-mail capability, jurors may be tempted to post thoughts about the ongoing jury experience, despite explicit instructions to avoid discussing the trial with outside parties.

Jury Instructions

Given this new technological reality, counsel and judges have adapted jury instructions that include specific charges against blogging or posting online comments about a pending trial. Trial attorneys also have started to routinely monitor pretrial and post-trial publicity on the Internet to determine whether jurors or others had blogged or posted online comments about the trial that might reveal pretrial bias. Beyond jurors, counsel and judges need to be aware how their own blogging practices are impacted by professional ethical standards.

Generally speaking, a blog is an application that displays periodic written or video posts on a common Web page. Essentially, a blog serves as a public journal for one or more contributors on general interest or niche topics, or more often, simply details events in the author's daily life.

Blogs often permit readers to post comments or images to foster an open forum of lively discussion. A blog may exist as an independent Web site, a separate Web page on an individual's or company's existing site, or be part of an online social network member's personal page.

Moreover, with the growing popularity of Twitter, a social networking and microblogging site that allows users to make posts or “tweets” of up to 140 characters in length, the ability to deliver quick, contemporaneous opinions away from the computer has become even easier.

Emerging Litigation

In fulfilling their service, jurors must deliberate only with the evidence received in open court, not from outside sources or through extraneous communications with outside parties. A presumption of prejudice arises where a juror speaks with a third party about the case or communicates with any person who is associated with, or has an interest in, the outcome of the case. United States v. O'Brien , 972 F.2d 12, 14 (1st Cir. 1992).

When jurors blog about ongoing trials, there are several key considerations: Did the jurors discuss details of the trial? Did the jurors display a pretrial bias for or against one party? Did fellow sitting jurors read the blog or electronic communication during the trial and thus become unduly influenced?

Under certain circumstances, posting to a blog during a pending trial may constitute prejudicial extrinsic communications. As some commentators have noted, the contents of a blog could show prejudgment, prejudice or the formation of opinions not based upon evidence admitted at trial such that a court might deem the juror unable to set aside possible biases and complete the role of impartial arbiter. See, e.g., comments of Wendy Seltzer, law professor and legal blogger, at “Blawggers Respond: Juror May Blog Jury Duty, but Not During Trial,” Legal Blog Watch (Oct. 4, 2005; last visited April 27, 2009). (“[S]omeone who had publicly blogged a position based on opening statements might be more reluctant to shift his or her opinion to take later evidence into account.”) Beyond blogging about the trial, courts are also concerned about jurors conducting their own Internet research about the trial. See, e.g., United States v. Siegelman, 2009 WL 564659 (11th Cir. March 6, 2009 (request for mistrial based upon juror's online research denied in light of the government's substantial case and the jury's reasoned verdict.)

Recent decisions illustrate that blogging can impact legal proceedings by interfering with a fair trial and impartial jury. In one case, following a guilty verdict, defense counsel learned the jury foreman had blogged about his upcoming jury service, expressing general bias against criminal defendants as well as a possible mistaken belief regarding a criminal defendant's presumption of innocence.

Reviewing the conviction, the New Hampshire Supreme Court denied the defendant's motion to set aside the verdict, finding that the juror understood the need to follow the court's instructions and that, in any case, none of the juror's postings were presumptively prejudicial against the defendant. State v. Goupil , 908 A.2d 1256 (2006).

The defendant subsequently sought review in federal court, asserting that he was denied his constitutionally guaranteed right to a fair and impartial jury.

In dismissing the defendant's habeas corpus petition, a New Hampshire district court reasoned that none of the blogging juror's pretrial personal opinions constituted extraneous influence that would give rise to a presumption of prejudice because none of his fellow sitting jurors read or even were aware of the blog during the trial. Goupil v. Cattell, 2008 U.S. Dist. LEXIS 14774 at 20 (Feb. 26, 2008).

Furthermore, the court found that the blogging juror's pretrial comments were generalized commentary on the criminal process, not about the ongoing trial, and too non-specific for a court to deem presumptively prejudicial. Ultimately, the court found nothing to suggest the juror in question failed to follow the trial court's instructions and was unable to consider impartially the evidence presented.

Similarly, in State of Ohio v. Goehring, 2007 Ohio App. LEXIS 5169 (Nov. 2, 2007), an Ohio appellate court affirmed a lower court's denial of defendant's motion for a new trial based on a juror having posted comments about the trial on his blog that outlined the details of the case and allegedly showed that he “pre-decided” the verdict.

As in Goupil, defense counsel found the juror's blog while performing an Internet research following the verdict. After holding a hearing, the trial court determined the comments did not express any bias as to a guilty or not guilty verdict and that his detailed discussion of the case was made post-verdict, when he could speak freely.

The appellate court affirmed, concluding that the juror, while opinionated, did not express any discernible bias against the defendant and had even offhandedly mentioned in his blog post on the first day of the trial that he was prohibited from discussing the case. Moreover, the court found there was no evidence the other jurors had read the blog.

Notably, the Goupil and Goehring courts found that the other sitting jurors were not aware of the blog posts in question and that the Goupil foreman's posts received no comments. In short, these decisions suggest that if sitting jurors read a fellow juror's posts during the trial, it might constitute extrinsic communications that would taint and improperly influence the jury panel. Similarly, if a blogging juror reads and responds to an outside reader's comments, such interaction could potentially give rise to a presumption of prejudice based upon such extrinsic communications. See , e.g. , Commonwealth v. Guisti , 449 Mass. 1018 (Mass. 2007: juror posted e-mail detailing trial on the Internet and received two online comments advising the juror to refrain from discussing the case; court concluded that the juror and jury panel as a whole was not subject to extraneous influence and could not be the basis for a mistrial.)

In addition to blogging jurors, postings by trial reporters can unearth potential juror misconduct. In United States v. CITGO Petroleum Corp., 2007 U.S. Dist. LEXIS 85341 (S.D. Tex. Nov. 19, 2007), the commentary of a blogger covering a criminal trial hinted that she had knowledge of juror statements made during deliberations, raising vague allegations of jury tampering.

The court ruled the blogger's posts incorporated an element of fantasy that did not credibly support a likelihood of tampering. Although speculative claims of juror exposure to extrinsic influence generally do not require a “full blown evidentiary hearing,” the court nonetheless ruled that the allegations justified further investigation and granted leave to defense counsel to take the blogger's deposition.

[Editor's Note: Some judges are permitting members of the press to Twitter from the courtroom. See, "Twittering in Federal Court" in the May '09 issue of Internet Law & Strategy, available at www.ljnonline.com/issues/ljn_internetlaw/7_5/news/152151-1.html.]

Counsel, Judicial Comments

In addition to jurors, blogs have proven popular with attorneys for marketing purposes and academic discussion of specific practice areas. Although some bar associations have undertaken to address attorney blogs, they have principally confined their efforts to blogging as it relates to legal advertising.

For example, under the New York Rules of Professional Conduct, newsletters, client alerts and blogs intending to educate recipients about new legal developments would generally not be considered advertising. But a blog primarily about a lawyer or law firm, heralding clients or recent achievements, generally would be deemed advertising subject to rules of professional conduct. See, New York Rules of Prof'l Conduct R. 7.1 cmt. [7] (eff. April 1, 2009).

Most recently, a firm in Louisiana has challenged the constitutionality of new attorney advertising rules that allegedly would restrict attorneys from posting comments to blogs and social network sites, and from acting as guest bloggers on other attorney's sites. See, Weiss, “Lawyer Ad Rules May Bar Blogging, La. Law Firm Says in Suit and Blog,” ABA Journal (Nov. 24, 2008).

Existing attorney ethical rules concerning trial publicity and other communications generally address blogging as it relates to public communications by attorneys. For example, ABA Model Rule 3.6(a) precludes attorneys from making extrajudicial statements that will be “disseminated by means of public communication” and have a “substantial likelihood of materially prejudicing” a legal proceeding. ABA Model Rules of Prof'l Conduct R. 3.6(a).

This rule suggests that an ethics committee or court would examine an attorney's blog concerning ongoing litigation similar to a press release or newspaper interview because the blog itself would likely be deemed another example of a means of public communication. For example, a California Superior Court judge reprimanded a temporary prosecutor for his blogging about a pending case. However, the judge did not find the prosecutor's remarks sufficiently prejudicial to dismiss the case. See, Smith, “Judge Reprimands Temp Prosecutor for Personal Blog,” The Recorder (April 28, 2006).

However, ABA Model Rule 3.6(c) permits an attorney to “protect a client from the substantial undue prejudicial effect of recent publicity” initiated by a third party. This carve-out for extrajudicial statements enables attorneys to respond to public statements about their clients by third parties. If a third party's blog post or comment is adversely prejudicial to an attorney's client, the carve-out conceivably would allow the attorney to respond defensively through a rebuttal comment or a posting to that attorney's own blog, if a reasonable lawyer would believe a mitigating response is required.

Rules for Judges

As with attorneys, ethical rules also bind judges. It is clearly established that maintaining “the appearance of impartiality of the judiciary is an interest of vital importance.” Kirchgessner v. Wilentz , 884 F. Supp. 901, 912 (D.N.J. 1995).

For example, Canon 3A of the Code of Conduct for United States Judges, which applies to federal court judges, states that judges should “neither initiate nor consider ex parte communications on the merits” and avoid public commentary on the merits of a pending or impending action. Code of Conduct for United States Judges Canon 3A(4), (6).

A plain reading of this rule appears to prohibit judges from blogging about ongoing matters; merely reading blogs by, or regarding parties to, pending proceedings before them could also raise allegations of personal bias from extrajudicial sources. See, Netbula v. Storage Tech. Corp., 2008 U.S. Dist. LEXIS 12182 (N.D. Cal. Feb. 8, 2008).

Canon 4A of the Code of Conduct allows judges to “speak, write, teach ' and participate in other activities concerning the law” as long as it does not cast “reasonable doubt on the capacity to decide impartially.” Thus, the rule would allow a judge to blog about legal issues of the day or non-legal issues that do not concern current or impending litigation in any court, or involve the endorsement of political candidates.

Accordingly, Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit is co-author of a blog about economics, law and policy, but clearly states that “the rules of judicial ethics preclude [me] from commenting publicly on pending or impending litigation.” Introduction to the Becker-Posner Blog (last visited April 27, 2009). See also, Lessig Blog, “When Judicial Lips Are Sealed” (Aug. 22, 2004; last visited April 27, 2009).

Interestingly, however, a state administrative special education hearing officer was recently terminated for blogging about topics that were before her as a hearing officer. A district court upheld her removal. See, Stengle v. Office of Dispute Resolution, 2009 WL 1138119 (M.D. Pa. April 27, 2009).

The court found that given her blog posts, which offered criticism about the school district and administrative policies, the hearing officer's impartiality had come into question, prompting parties to request her recusal in multiple matters and causing disruption to the school district.