Web Restrictions Not The Answer to Juror Online Research

Juror use of the Internet to do research or communicate about trials is a growing and persistent problem. So, what can a judge do? For several years now courts have been giving jurors more detailed admonitions and jury instructions against educating themselves about cases online, to little effect.

A few judges have taken a different approach, ordering web sites with information on specific cases to remove the information from the Internet. But in a pair of recent decisions, appeals courts have said this method of limiting juror online research is an unconstitutional prior restraint.

Fifth Circuit

In Lafayette, Louisiana, several former and current city police officers maintained a website (realcopsvcraft.com, no longer online but archived here) that supported their civil rights lawsuit against the city for allegedly barring them from discussing or reporting what they allege is corruption of the city's police chief. Among the items posted on the site were audio recordings of a meeting discussing possible charges against officers who were in a bar after hours.

A magistrate of the trial court, concerned that the website's content could taint a possible jury pool, ordered the entire site removed from the Internet. He justified his order on the grounds that the web site "not only contain[ed] comments and information that would violate [Louisiana Rule of Professional Conduct] 4.4 [barring attorneys from using material primarily meant to embarrass, burden or violate the legal rights of a third person]," but also because the site "is and has been used asa vehicle by which to disseminate inappropriate information to the media and the public." Marceaux v. Lafayette City-Parish Consolidated Gov't, Civil No. 12-1532, 2012 U.S. Dist. LEXIS 134146 (W.D. La. Sept 19, 2012)

[I]t is clear to this Court that the plaintiffs are prepared to "try this case in the press," and since this involves the entity responsible for protecting the safetyand property of the citizens of this division, this Court cannot allow that to happen. The plaintiffs' argument that a change of venue can curethe problem they would otherwise be allowed to create without action bythis Court is not only unfair to the defendants who are entitled to geta fair trial in this division, but would result in unnecessary burden and expense to the judicial system. Therefore, this Court will grant that aspect of the defendant's motion dealing with the website and extra-judicial comments to the media.

Id. Despite the order, the recordings are still available online, including here.

The current and former employees appealed the order shutting down the web site to the U.S. Court of Appeals for the Fifth Circuit, which reversed.  Marceaux v. Lafayette City-Parish Consolidated Gov't, No. 13-30332, 731 F.3d 488 (5th Cir. Sept. 30, 2013).

[T]he district court erred in concluding that the entirety of the Website was substantially likely to cause prejudice. Accordingly, the court's determination that the entire Website "demonstrate[s] a substantial likelihood of impacting the jury venire," is overbroad and clearly erroneous. As a result, we must vacate the portion of the order requiringthe "takedown" of the Website.

Id. (citations omitted).

California Court of Appeals

Meanwhile, a California appeals court held that a judge's fear that jurors would search for a plaintiff's attorney online and discover her prior victories in similar cases listed on her web site was not sufficient rationale to order the removal of that information.  Steiner v. Superior Court (Volkswagen Group of America), Civil No. B235347 (Cal. App., 2d Dist. Div. 6 Oct. 30, 2013).

Simona Farrise was representing a man who alleged that carmakers' use of asbestos in their brakes systems led to his lung cancer. After jury selection but before trial, the defendants requested that the court order Farrise to remove pages from her website touting victories in two similar cases (one of the pages is