Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Monday, June 15, 2009

Texting During Jury Deliberations

Electronic Communications During Jury Deliberations (registration required) is an interesting May 18, 2009 New York Law Journal article. It documents recent cases and pending litigation where jurors used email, Twitter or Facebook during a criminal trial. As the article points out, attempts by jurors to communicate about a pending trial have long been improper.  It seems like electronic communications will be treated in a similar fashion. As the article states:

Under N.Y. Criminal Procedure Law §270.40, once the jury is sworn, the court must give instructions that: "jurors may not converse among themselves or with anyone else upon any subject connected with the trial; that they may not read or listen to any accounts or discussions of the case reported by newspapers or other news media."

Web 2.0 has expanded and personalized our sources of information blurring the lines between traditional news media and privately published accounts.9 At the same time, mobile media has subtly transformed the art of conversation. Nonetheless, there is ample historical precedent to guide courts in responding to the abuse of communication technology by jurors.

More than half a century ago, the Appellate Division, Second Department, in People v. Migliori, 269 A.D. 996 (2nd Dep't 1945), reversed a conviction for withholding stolen property because the trial judge mistakenly permitted jurors to make phone calls during deliberations. Court officers were the proper conduits for such communications, which is the standard embodied in the current statute, N.Y. Criminal Procedure Law §310.10(1).

Mitchell H. Rubinstein

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