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IMPACT OF SOCIAL MEDIA ON JUDICIAL PROCEEDING

Subject: Legal Method

Submitted by:
Narendra Singh
UG17-62
I Year 1 Semester
Submitted to:
Ms. Karishma Gavai

Maharashtra National Law University, Nagpur


Table of Contents
Introduction ............................................................................................................................................ 3
Aim and objective ................................................................................................................................... 4
Research methodology ........................................................................................................................... 4
Social media ............................................................................................................................................ 5
Social media tools in the courts: Impact on the trial courts ................................................................... 6
Social media use that directly impacts the provision of justice.............................................................. 7
Use of social media by judges and court staff ........................................................................................ 8
Conclusion ............................................................................................................................................. 10
Bibliography .......................................................................................................................................... 11
References ............................................................................................................................................ 11
Introduction

This Project will give a comprehensive overview of what social media are, why social media
are important in courts and judicial proceeding, how social media can be used effectively,
what social media platforms are well-suited to the courts, what problems can arise, and how
to proactively deal with such problems.
Tweet, poke, post, friend, like, blog, link, comment, and share, the opportunities to
communicate electronically using social media tools seem never ending. Facebook, Twitter,
YouTube, MySpace, and LinkedIn, these are just a few of the social media sites that allow
people to communicate and “connect” with others across the world in seconds. E-mail and
text messaging are two other ways to communicate electronically, but neither e-mails nor text
messages can keep up with the speed, accessibility, and popularity of social media.
Social media is entrenched in our lives as evidenced by the fact that adult profiles on online
social media sites are up from eight percent in 2005 to forty-seven percent in 2009 1 .
Technology has made communication instantaneous no matter which “social networking” or
communication method is chosen. Unfortunately, social media communication can be
dangerous to the integrity of the courts.
The jury is still out on whether social media will have a positive or negative impact on the
legal community. There are many different uses for social media aside from personal use and
networking. The courts argue that it interferes with the trial process, even though they have
created their own social networking sites, while attorneys argue that it is pivotal to jury
selection and evidence.
This Project will explain about social media and how it impacts the courts, including the
judiciary’s response to the use and abuse of social media by jurors, judges, and other court
personnel. This project will also explain ways in which the judiciary can regulate or attempt
to control the use of social media sites in courtrooms.

1
Amanda Lenhart et al., Social Media & Mobile Internet Use Among Teens and Young
Adults, PEW INTERNET & AM. LIFE PROJECT (Feb. 3, 2010), http://www.pewinternet.org/~
Aim and objective

This Project is demonstrating how the unregulated use of social media by participants in the
justice system (judges, attorneys and jurors specifically) affects the public perception and
subsequently the integrity of our justice system. The project will provide a holistic review of
social media use by judges, attorneys and jurors, and demonstrate why their use of social
media should be harnessed in a manner to ensure compliance with ethical rules and reduce
potential negative effects to the social contract between law and society. The project will
discuss the perception of lawyers held by the public in general as a foundational basis to
discuss the importance of appropriately regulated social media use in the legal profession.
Project will explain justification for regulation, or at the very least, detailed guidance for
social media use for those in the justice system, recognizing that social media’s rapid
dissemination of material requires that the legal profession harness or, less restrictively,
regulate unfettered use of social media by attorneys as any negative implications will serve to
further undermine the public trust in the profession.

Research methodology

In an attempt to give shape to the objective of this project, the methodology used by the
researcher is based on doctrinal mode of research as researcher has used some credible
sources relevant to research problem without any scope of doubt. Researcher has used
secondary data to framework this project With regards to this view, the researcher has gone
through some projects already done on this subject, articles available on internet and books.
The approach to both the facets is only to derive the reason of dissent among them to analyze
the topic at hand. The researcher is not concerned with the status of other writers, nor does
he give importance to what is the cause of the such disagreement, but what essentially can
one get from them.
The deductive methodology helps the researcher to make this project in an appropriate way
by gathering admissible data from various sources.
Social media

Social Media means:-


1) Internet-based tools that enhance the sharing of information.
2) Software whose goal is to maximize user accessibility and self publication.
3) A blending of technology and social interaction for the co-creation of value.
4) Examples include Face book, LinkedIn, Twitter, Wikipedia, YouTube, and Yelp2.
It is apparent that courts primarily use three prominent, popular social media platforms:
Twitter, Facebook, and YouTube.
Social media applications can be categorized into several main zones: social and professional
networking (e.g., Facebook & LinkedIn); publishing of information via blogs (short for “web
log”), micro-blogging (e.g., Twitter), and wikis (e.g., Wikipedia); sharing of information via
social bookmarking (e.g., Digg) and multimedia, including photos and videos (e.g., Flicker,
Instagram, and YouTube); and discussing topics of interest (e.g., Quora), including threaded
discussions (chronological message exchanges in a hosted online discussion group).
One of the defining characteristics of the new media is that they are multidirectional and
decentralized. In more theoretical terms, new media are described as the third and most recent
of what are essentially only three possible communications media: (i) interpersonal media as
“one to one,” (ii) mass media as “one to many” and, finally, (iii) new media or “many to
many.”3Contrast this with the traditional institutional and unidirectional judicial culture and
way courts have operated.
The way the new media culture is redefining cultural expectations and practices regarding
personal information-sharing raises unique and interesting questions for courts. There is an
incompatibility between the judicial culture and the new media culture.

2
http://oxforddictionaries.com/view/entry/m_en_us1443359#m_en_us1443359
3
http://www.iacajournal.org
Social media tools in the courts: Impact on the trial courts

Courtrooms across the country are affected daily by the Internet and social media. Social
media creates a challenge for courts because a simple “tweet” or “comment” can be posted,
copied, and republished around the world within seconds. If the tweet, post, or comment
relates to an ongoing case or trial, the availability of such information can cause serious
complications for the courts. 4 With the creation of smart phones, access to social media
applications has become rampant because most jurors, attorneys, judges, and other court
personnel have cell phones, personal computers, or tablets with the ability to text, tweet, or
post at any time. The unregulated access to social media in the courts can cause ethical
problems for judges as well as attorneys.5 As a result, the judiciary has begun to regulate the
use of social media tools.
The use of social media in the courtroom leads to mistrials, and it is beginning to have an
impact on the integrity of the trial courts and the right to a fair trial. As Dr. Douglas L.
Keene, a psychologist and past president of the American Society of Trial Consultants, noted,
“if a burglar can’t resist checking his Facebook status while in the high adrenaline process of
burglarizing your home, what’s to stop a juror during courtroom tedium?”6 Along those same
lines, what’s to stop a judge from networking with other attorneys on social media or vice
versa? There are no signs of decreasing social media usage. Thus, the judiciary, and the legal
system in general, need to take a hard look at how social media affects the trial process.

4
See Davey et al., supra note 7, at 24,26 (discussing the effect social media has on court
Proceedings).
5
See generally Angela O’Brien, Comment, Are Attorneys and Judges One Tweet, Blog or
Friend Request Away from Facing a Disciplinary Committee, 11 LOY. J. PUB. INT. L. 511, 518 19
(2010) (explaining ex parte communications via social networking).
6
Available at http://www.thejuryexpert.com
Social media use that directly impacts the provision of justice

Social media creates both opportunities and challenges for the legal system. For instance, the
use of social media has become a widely accepted and efficient form of legal marketing.
Social media has also been recognized as important for networking, for accessing legal
information, and for heightening awareness and promoting legal reform.7
Lawyers have recognized the shift from optional use towards necessary use of social media in
order to maintain a competitive edge in the legal marketplace. In fact, double-digit
percentages reported they had clients who retained them directly or via referral as a result of
the lawyers’ use of online services.8
Bar organizations around the country have also recognized the importance of providing
guidance and information to the legal community regarding the use of social media. 9 For
example the State Bar of Texas has issued guidelines for attorneys regarding the proper use
of social media and blogs. The Florida Bar has also provided guidelines for advertising on
networking sites. In addition to the voluntary use of social media by attorneys to promote
their services, social media use has also drastically increased in the litigation of cases. The
current social climate demands that the savvy lawyer include use of technology as an integral
part of a successful practice, particularly as it relates to research and preparation for
cases.10Since 2010, social media have been a key part of upwards of 700 cases with lawyers
using social media profiles to reveal such things as a person’s state of mind, evidence of
communication, evidence of time and place, and evidence of actions.
Social media is also a primary form of communication within the justice system, and between
the justice system and the general public. For instance bar associations use social media to
communicate with their members, some using fulltime social media coordinators. A number
of state court systems also provide case updates accessible to the public via social media. It
has also become common practice for reporters to tweet from the courtroom, 11 providing
another avenue of public access to judicial proceedings.

7
See Jan L. Jacobowitz & Danielle Singer, The Social Media Frontier:
Exploring a New Mandate for Competence in the Practice of Law, 68 U. MIAMI
L. REV. 445, 472 (2014)
8
http://www.abajournal.com/magazine/article/online_rain_survey
9
See Arden Ward, TYLA
Pocket Guide: Social Media 101, TEX. B.J. (Nov. 2013), available at
http://www.texasbar.com
10
See Nicole D. Galli et al., Litigation Considerations Involving Social
Media, 81 PA. B.A. Q. 59, 59 (2010)
11
http://www.citmedialaw.org/blog/2009/twitter-moves-federal-court/.
Social media is a practical tool for judicial election campaigns and also a means of public
outreach.12 Social media can be and currently is used to improve the justice system. However,
misuse of that same social media by judges, jurors, and attorneys has proven to be
problematic.

Use of social media by judges and court staff

Another aspect of social media use in the courts is how these platforms are being
professionally and personally used not by courts themselves, but by the judges and court staff
who work there. This article primarily focuses on court staff; excellent recent treatments of
judicial use are contained in the law review article “Why Can’t We Be Friends? Judges’ Use
of Social Media,”13 as well as a paper entitled “Technology and Judicial Ethics.”14

Professionally
Many judges have created Facebook and LinkedIn pages, have Twitter accounts, and even
publish legal/court blogs (either alone or as contributing authors). In jurisdictions which have
elected judges, these activities are more common as a means to connect with voters.
Unfortunately, there have been many instances of ethical violations by judges using social
media in their election campaigns. To avoid this, many judges’ social media election
platforms are maintained by campaign staff instead of the judges themselves in the hope of
avoiding some of the ethical pitfalls.
A prime reason for judicial social media use is to network with other judges, overcoming to
some degree the isolation that many judges feel once they take office. Overall, the purposes
overlap those of the courts themselves, as outlined above in this article. In many jurisdictions,
however, there are constraints on what judges and staff may do while using social media –
this will be discussed more thoroughly below.
Many court administrators participate in LinkedIn to facilitate networking with peers around
the globe. IACA has a LinkedIn group, for example (as do other court and justice
organizations).

12
John G. Browning, Why Can’t We Be Friends? Judges’ Use of Social
Media, 68 U. MIAMI L. REV. 487, 490 (2014)
13
“Why Can’t We Be Friends? Judges’ Use of Social Media,” by John J. Browning, Miami Law Review,
February 2014, vol 68:487;
http://lawreview.law.miami.edu/
14
http://ssrn.com/abstract=2418268
The American Bar Association has published a relevant book, LinkedIn in One Hour, which
has many good tips on how to effectively and properly leverage this platform.15

Personally
Judges and staff use social media in their personal lives almost the same as any other citizen.
The exception is where employment by the judiciary has constraints which extend to personal
use. Problems may arise from social media use by judges and court staff. “Online tools have
made interacting with the public more convenient, but the legal pitfalls associated with social
media have also been exposed.” 16 A 2014 survey found that “…71% of the…responding
businesses have had to take disciplinary action against an employee for misusing of social
media…a tremendous jump from last year’s iteration of the survey, in which only 35%
reported they had to take this kind of action.”17 Inappropriate postings about pending cases,
lawyers, witnesses, litigants, and the news media can compromise the integrity of the court
and judicial process. Areas of judicial and employee ethics that immediately come into
question include: an appearance of, or actual impropriety (such as ex parte communication);
conflict of interest;

15
https://apps.americanbar.org/abastore/index.cfm?fm=Product.AddToCart&pid=5110772
16
http://www.govtech.com/e-government/What-Does-Your-Lawyer-Want-You-to-Know-About-Social-
Media.html
17
“More Social Media in the Workplace, More Problems,” by R. Mintzer, Corporate Counsel
http://www.corpcounsel.com/id=1202653798925/More-Social-Media-in-the-Workplace,-More-Problems
Conclusion

Social media use is not an esoteric pastime or fleeting trend. As technology changes and
social media sites grow in popularity, courts will continue to face the challenge of adopting
new rules to address the problems created by such technology. New court rules and
procedures relating to technology need to be in place to protect the right to a fair trial,
impartial jury, and the public trust and confidence in the judiciary. Preventative measures
such as judicial ethics rules, admonitions for the jury, and clearly laid out punishments for
violators are the appropriate measures to address the impact of social media on the judicial
system.
It is mainstream, commonplace and inextricably interwoven into our society, both locally and
globally. For the legal profession, social media is replete with both potentials and perils. The
perils in particular have the powerful ability to affect the publics’ perception of the profession
which can inevitably cause wariness and distrust of the entire justice system. It is imperative
that the legal profession fulfills its responsibility to ensure that use of social media does not
negatively affect the public perception of the profession and cause an asphyxiation of the
flow of justice. Education and awareness are key to ensuring the profession stays abreast of
technological changes and any potential ethical and social consequences social media use
might foster.
Judges, jurors and attorneys should all be reminded that they must be prudent and carefully
consider all their social media communications because every comment, post, tweet, and
friend request could effectively result in a detrimental impact to the publics’ perception and
confidence in the justice system. Where appropriate, regulation and guidelines should be
instituted and must be embraced.
Bibliography

Available at http://www.pewinternet.org

Available at http://oxforddictionaries.com

Available at http://www.iacajournal.org

Available at http://www.thejuryexpert.com

Available at http://www.abajournal.com

Available at http://www.citmedialaw.org

Available at http://ssrn.com

Available at https://apps.americanbar.org

Available at http://www.govtech.com

References

“Litigation Considerations Involving Social media” by Nicole D. Galli

“Why Can’t We Be Friends? Judges’ Use of Social Media,” by John J. Browning

“More Social Media in the Workplace, More Problems,” by R. Mintzer