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Beware of the possibility that jurors may be tweeting and blogging during trial--ignoring admonitions from the trial judge. One federal judge concludes posting tweets about the case during trial does not constitute talking about the case with others.

Many people cannot control their social media impulses and this is now becoming an issue during trials. Disregarding the court's instructions that jurors are not to discuss the case with anyone during the trial, there are reports of jurors blogging about their day-to-day experience as the trial proceeds.

Now the latest in New York. In U.S. v. Feng Ling Liu, two lawyers were convicted in the Southern District of New York following a 19-day trial in an immigration scheme of submitting thousands of fraudulent asylum applications.

During trial, counsel for both sides received an anonymous email shortly after midnight on April 9 from someone claiming to be a reporter doing "doing research on juror misconduct." It turned out Juror #10 was tweeting daily from March 20 to April 7, saying things like, "Add in just one song & dance number and this federal case would rival anything I've seen on broadway #jurydutyrocks" and "But for my ADD, I'd want to be an ADA. Thanks DAD." Judge Abrams dismissed #10 and questioned the other jurors to ensure no one was talking about the case.

On April 14, the jury found the defendants guilty of a single count of conspiracy to commit immigration fraud.

A post-trial investigation revealed that Juror #2, Laura Curtis, had also been tweeting, leading to a motion for a new trial on September 5th. Curtis is a romantic suspense writer who began tweeting on the eve of opening statements. The recurring themes of her tweets were her frustration at sitting through a long trial and her hope that she might get some good story ideas out of the experience.

At one point, she negatively tweeted about the defendants: "these people prey on the fear and ignorance of applicants. It's horrible."

Judge Abrams denied the motion for a new trial, concluding that the defendants' arguments that the tweets revealed a bias against them were "unpersuasive." The Judge also rejected their argument that Curtis was untruthful when she, along with the other jurors, was asked individually by the Judge after the midnight email concerning Juror #10 whether she had communicated about the case on the internet or in social media.

In doing so, Judge Abrams said "Juror 2 was never asked specifically whether she had discussed the case with anyone on Twitter or other social media." According to the Judge, Curtis was frank and said the only thing she talked with other people about was the fact she was sitting on a jury and "things like, oh, my God, I hope it's over tomorrow and things like that."

The Judge also said Curtis was honest in denying that she had talked about the case with others or her fellow jurors on social media. "As the government rightly observes . . . there is no evidence to suggest this answer was untrue because there is a relevant distinction between posting something and reading it." (Really? Posting on the internet about the case does not constitute talking about the case with others?) "Juror 2's impugned activities were entirely within the latter category and defendants have not claimed otherwise."

Policing juror conduct in the internet age presents tremendous challenges that are just beginning to be felt by litigants and the courts...

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