Archive for the ‘Internet & jurors’ Category
A few weeks ago, I was eating a late lunch and turned on the TV and watched the Katie Couric talk show for the first time. She was talking to two 20-something guests about the perils of online dating. They talked about ways to protect yourself from deceptive “catfishing” by using Google image search or examining social network profiles for inconsistencies and at one point Katie said “My gosh, you have to be like Columbo these days!”. Both of her young guests smiled politely but their blank faces made it clear they had no idea who Columbo was.
One of the guests was Nev Schulman from the movie Catfish. If you don’t know this story, Nev met a woman named Megan online who was gorgeous and a dancer and a singer and he fell in love. When he showed up on her doorstep to meet her in person, Megan turned out to be a 40-something housewife named Angela who was diagnosed with schizophrenia and caring for two disabled stepsons. Part of the reason Nev was on the Katie show was to advertise his new TV show (Catfish the TV show). In this show, Nev travels the country visiting people who are involved in online relationships with people who always seem to turn out to be imposters hiding behind fake profiles. He teaches them how to investigate their online loves and dispenses a blend of empathy and sincerity that is very likable while their fantasies crumble about their feet.
Shortly after I watched this show, I saw a story at Courthouse News about a woman suing Match.com for $10M because someone she met on their website “hid in her garage, stabbed her 10 times and kicked her in the head until she ‘stopped making the gurgling noise’”. She says Match.com didn’t warn her about the possibility of meeting “an individual whose intention was not to find a mate, but to find victims to kill or rape”. She did not sue her attacker. She couldn’t. He died in prison while “serving 28 to 70 years for killing an ex-girlfriend”.
“What happened to Mary Kay Beckman is horrible, but this lawsuit is absurd,” Match.com said. “The many millions of people who have found love on Match.com and other online dating sites know how fulfilling it is. And while that doesn’t make what happened in this case any less awful, this is about a sick, twisted individual with no prior criminal record, not an entire community of men and women looking to meet each other.”
It isn’t as though these are isolated cases or very, very fringe behavior. These are sad, sad stories involving a pretty universal desire to be loved and cherished. It’s been hard to miss the publicity surrounding Notre Dame’s Manti Te’o and his own catfishing experience with a very unlucky (and then dead and then alive again) girlfriend. The “girlfriend” turned out to be a disturbed young man who once auditioned for the television show The Voice.
It’s a difficult issue. We’ve worked a couple of cases where people were assaulted by others they had met online. One case involved a minor girl and the other involved a grown woman. In both cases, the assailant lied about who they were, how old they were, and what their intentions were, while all the while enticing the victim to meet them. Both stories were horribly sad and life-changing for the victim. Yet, in both situations, our mock jurors said the fault lay with the victim for “lying to her mother and meeting this guy” or “telling him where she lived”. Jurors thought these women had learned a very hard and cruel lesson but they should not be compensated by the online service for using bad judgment.
There are discussions occurring as to how to respond from a legal standpoint to the perpetrators of these hoaxes. In our experience, jurors think these are examples of poor personal responsibility by the victim of the hoax. The online service was scrutinized, but overall the mock jurors felt that users of these services know that there is no vetting of community members, and anyone who assumes authenticity in online disclosures is, at best, naïve. This is an area we will keep up with as new definitions and practices emerge to keep up with our changing definitions of what constitutes a “relationship” in a social media world.
We are always on the prowl for tools to help with litigation research. This one took us a little by surprise when we read a piece on it in the Atlantic. While Facebook apparently rolled this service out to be more of an information source, we wonder if they thought about how Graph Search could be used for more nefarious or humiliating purposes. For example, here are some recent graph searches done on Facebook and helpfully posted on Tumblr within 24 hours of Graph Search’s launch.
Current employers of people who like racism.
The spouses of people who like Prostitutes.
The mothers of Jews who like Bacon.
Single women who live nearby and like getting Getting Drunk.
And there are likely a lot more out there without the faces and names blurred for privacy. This new Facebook tool raises two issues for us:
First, please check your Facebook Privacy Settings again! This is something you need to do routinely but especially now! What you assume is private or only available after hours of scrolling through your own ancient history is now accessible and quickly.
Second, this raises many questions about litigation research. Now you can quickly search for attitudes and opinions toward various corporations or litigation issues. How do people feel about your corporate client? About gay marriage? About gun control? About deception? Some of the answers you may already know–because they are controversial and divisive. But the resource may also give you new areas for discovery or for questions in pretrial research.
One could argue that Facebook posts are less “troll-ish” than what you see in the Comments section of mass media news sites. People on Facebook are, after all, posting for their friends (however loosely defined). But we don’t know that for sure. Regardless, this is a sure tool for social media analysts to apply to multiple questions, and a potentially valuable online discovery tool. Your peers have already been at least considering it. As has the mass media.
We’ve written for The Jury Expert a fair amount. In case you don’t know, The Jury Expert is a free publication from the American Society of Trial Consultants that is all about the art and science of litigation advocacy.
Our articles in The Jury Expert are focused on litigation advocacy and meant to help you do your job with the latest information available. Take a look at what we’ve done in the past couple of years.
Yes, says Amy St. Eve (a federal judge in Chicago). While the judge doesn’t do either Facebook or Twitter herself, she has polled jurors in her courtroom by asking two questions embedded in a larger written survey:
“Were you tempted to communicate about the case through any social networks, such as Facebook, MySpace, LinkedIn, YouTube or Twitter?”
“If so, what prevented you from doing so?”
Judge St. Eve acknowledges the sample of 140 actual jurors from both civil and criminal trials (drawn from her courtroom and the courtroom of a colleague, her co-author) is not a scientific one and thus open to criticism around basic issues such as generalizability. She writes in the description of the survey itself: “We expect a Daubert challenge from some in the blogosphere”.
The findings were recently published in the Duke Law and Technology Review and give a positive response to the question of the influence of the courtroom judge on individual jurors. [She also cites our work on jurors and the internet so we know she’s done her homework!] The lengthy introduction to the survey results is a good review of what has been published on the issue to date.
The vast majority (92%) of the jurors completing the survey reported no temptation (none at all!) to communicate about a case through social media.
Only six of those completing the survey said they were tempted and four did not do so because of the judge’s orders. However, not one of these six reported they actually did communicate about the case via social media.
“Our key takeaway from the informal survey is that courts should routinely and frequently instruct jurors not to communicate about the case through social networking services, because jurors tend to follow the judge’s social media instructions.”
From our perspective, Judges St. Eve and Zuckerman’s survey results paint a very rosy picture indeed. We imagine there is pressure to report obedience when you are filling out a survey for the judge and a quick search of Twitter using the hashtag meant to group tweets together finds a plethora of tweets indicating jurors are being quite disobedient and sometimes quite amusing.
There is nothing funny, however, about mistrials resulting from social media quips and insults. What we do agree with the authors on is the right of the jurors to respect from the court. They quote Judge Linda Giles in a 2011 Boston Bar Journal column:
“If jurors are going to be asked to sacrifice some of their personal freedom and forego their case-specific e-mailing, texting, blogging, instant messaging and social networking for the duration of their service, they are entitled to a clear and thoughtful explanation of the reason.”
We would go even further than this. If Judge St. Eve and Judge Zuckerman have demonstrated the sort of thoughtfulness in the courtroom that their carefully prepared paper reflects–we would think their respective jurors probably do listen well and take their roles seriously.
We would urge Judges St. Eve and Zuckerman to carry their research to the next logical step and ask about doing internet research. Our work with jurors suggests that this is a much more pervasive temptation, and logically it is of greater potential harm to justice. The prospect of a juror being guided by evidence gathered outside the courtroom (and outside the ability of the parties to challenge) needs to be thwarted, and a careful study of how and when this occurs would help judges craft effective instructions.
Jurors are not easily fooled. When a judge carefully explains the rationale behind the ‘no social media’ or ‘no online research’ policy, it will make sense. Every juror can relate to the desire for a fair trial. The problem is that they don’t have the experience as jurors or litigants to appreciate the reasons that justice is undermined when the rules are broken. The recent death penalty verdict overturned by a series of careless tweets, despite warnings by the judge to stop, only underscores the very real cost and unfairness of social media involvement in cases very serious to the parties involved.
St. Eve, A., & Zuckerman, MA (2012). Ensuring an impartial jury in the age of social media. Duke Law and Technology Review, 11 (1)
Read the full article here.