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Juries: Can They Blog? What Can They Read? - Jury Instructions in Comes v. MS
Thursday, January 25 2007 @ 09:00 AM EST

I thought you might be interested to read the instructions to the jury that the judge in Comes v. Microsoft reads to them every Friday, when they are let go for the weekend. I found it in Friday's transcript. By the way, I have put a permanent link to the daily transcripts in that case near the top of our permanent MS Litigation page, just under the links to the EU antitrust matter, so you can find them easily. [Update: there is now also a dedicated Comes v. Microsoft page as well, and the Comes entry on the MS Litigation page is now alphebetical in place, as opposed to at the top.] Here's some local coverage of the trial, about a request from Microsoft that was denied by the judge:
Judge Scott Rosenberg ruled Friday that Microsoft attorneys could not ask the named plaintiffs about their relationship with attorney Roxanne Conlin. The company's lawyers wanted to question the plaintiffs, arguing that Conlin had referred to them during jury selection as "just regular people who bought software" and who volunteered to step forward to sue Microsoft.... Microsoft attorneys claimed Conlin recruited these friends to act as plaintiffs in the case so she could sue the company and that her comments during jury selection opened the door for Microsoft to challenge the plaintiffs' motivation in filing the lawsuit.

"They are not volunteers. They're not regular people, and it's not the people who brought the lawsuit. It's Ms. Conlin's son's best friend and a good friend of hers for 25 years," Tulchin argued to Rosenberg outside the presence of the jury on Thursday....

Conlin said Microsoft wants the jury to believe that class-action lawsuits are attorney-driven cases brought for money when in reality they are a way for individuals with small claims to come together to take on large, powerful companies.

"Businesses like Microsoft have poisoned the public view of these forms for seeking redress by spending billions of dollars to spread propaganda. Now they seek to collect on their investment by improperly suggesting to the jury that the plaintiffs are not real plaintiffs," she said. "It is not relevant and it is so highly prejudicial to the plaintiffs, not because the plaintiffs did anything wrong, but because through the media and other mechanisms, Microsoft and other corporate miscreants have spread propaganda that class-action lawsuits are improper."

Ah, shades of Wikipedia. Remind you of SCO at all?

I am frequently asked what a jury is allowed to read, and you'll get your answer in these instructions. Jury instructions vary somewhat from place to place, civil or criminal, but this is typical. They can't read media coverage of the case, in case you are wondering, as you'll see, so they'll never hear about Microsoft's claim about Conlin's "best friend". Sometimes I've been asked if this reading restriction applies to judges, and the answer is that judges can read pretty much whatever they want. Now, why is that? Why the difference?

A number of things in the US court system are there because we have a layman jury system, and certain steps are taken to protect them from materials that might confuse a person who isn't legally trained. You'll see that a lot when we get to the trial, with respect to what evidence a jury can and can't have presented to it. It's very complex. Judges on the other hand can be exposed to an article and he or she will just say, "That's hearsay. I'll disregard that," as appropriate, or whatever, whereas a jury won't even know what hearsay is most of the time. Heaven only knows, the exceptions to the hearsay rule can seem counterintuitive sometimes.

And finding the precise line where something is or isn't hearsay can be a challenge. For example, here are some exceptions to the hearsay rule:

(19) Reputation concerning personal or family history. Reputation among members of a person's family by blood, adoption, or marriage, or among a person's associates, or in the community, concerning a person's birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history....

(21) Reputation as to character. Reputation of a person's character among associates or in the community.

So hearsay isn't allowed, but family and neighborhood gossip is? It's actually a bit more fine tuned.

I know what some of you are thinking, though, that you fervently hope your family is never asked a thing about you in any trial where your life is hanging by that thread. Also that you plan to be a lot nicer to them from this day forward. Joke, joke.

If you wish to know how one's reputation is established in a court of law, so you can prepare, here you go, Rule 405. Methods of Proving Character. That should be fun when SCO v. IBM goes to trial, if it ever does. Kidding. Here are the Federal Rules of Evidence, if the subject interests you. Here's a paper, "Bifurcation and the Law of Evidence" [PDF], by Jennifer Mnookin, a professor of law, on whether judges should themselves by subject to the rules of evidence:

That the law of evidence is the child of the jury system is not only oft-repeated but also, as a historical matter, probably true. As James Thayer put it in his 1898 treatise, “the greatest and most remarkable offshoot of the jury was that body of excluding rules which chiefly constitute the English ‘Law of Evidence.’” To be sure, historians disagree about the relative importance of the jury system, the adversarial process, the rise of lawyers, and the nature of the judicial role in bringing about our modern law of evidence, but there is little disagreement that the existence of a lay fact finder is one of the key ingredients in that murky stew. ...

Certainly there is an implicit logical fallacy in the common sense wisdom that, because the rules of evidence were invented for juries, judges in bench trials need not be bound by them. Even if (1) lay juries require epistemic regulation in order to make accurate and socially acceptable determinations of legal fact, and (2) judges are not lay juries, that does not, in and of itself imply that (3) judges sitting as fact finders do not require epistemic regulation in order to make accurate and socially acceptable determinations of legal fact. ...

Schauer assumes that courts often do not apply evidence rules to themselves because they think they do not need to—that judges, as expert legal evaluators, figure they can appropriately consider the evidence “for what it’s worth”—their ability to weigh the evidence serving, at least in theory, as a substitute for the operation of exclusionary rules.

The article raises some examples where it might be hard for a judge, but from what you've seen so far in the cases we've followed closely, I'm guessing most of you have more confidence in judges' abilities than you had when we began.

Can Jurors Blog?

And if you are worrying about whether you are allowed to blog about jury duty, should you ever be called, here's your answer, from, a qualified yes, but not about the case while the trial is going on. All in all, I'd say SCO's best plan of action is to get me on the jury. Kidding. I don't live in Utah, so I'm beyond their reach for that. had the brainstorm to poll some lawyers about that question in 2005, and here's the first response, by Lauren Gelman, associate director for Stanford Law School's Center for Internet and Society:

"I don't think bloggers should blog jury duty until after their service has concluded. A long history of thinking about the role of juries has led to the rules we have -- deliberate only amongst the jury with information selected by the advocates and vetted by the judge. This is a completely different model than the deliberation that occurs in the blogosphere. Interestingly, the press comparison in this case does not work, because the press has greater access to information about the trial than jurors do. Access to information by jurors is purposely limited.

"So I'd be happy to endorse bloggers playing the same role that journalists do in court proceedings (access and timely reporting), but I don't think the rules that apply to jurors should change if one happens to be a blogger or journalist."

Bob Ambrogi, blogger of Robert Ambrogi's Lawsites and Media Law said this, in part:

"The balance is between the right to a fair trial and the right of free speech. Many factors come into play. Is it a grand jury? Is it a criminal or a civil trial? Will the jury be sequestered? Is there a need to protect jurors' identities? Is it state court or federal court. Who is the judge?..."Generally, the answer about blogging jury duty would be: Yes after trial, no during trial, maybe before trial.

He goes on to break it down and explain each part, and his view is that at least you should be able to blog in the interval between when you show up and voir dire begins:

"Before trial, there may be two phases to consider. First is the general waiting-around phase. Jurors get called in, herded into a big room, and told to wait, with no idea of what is going on. I can't see any legal reason why a juror could not blog about this. I can see a technological reason, which is that many courts do not allow jurors or anyone else to bring electronic devices into the courthouse without advance permission. For example, the U.S. District Court in Mass. prohibits "cellular phones, cameras, computers, recorders, etc."

He suggests that if you are called to serve on a jury, it doesn't hurt to call the clerk of the court and just ask if you are allowed to bring and use electronic equipment with you. Most courts will not allow even a cell phone, so you'd be prudent to ask in advance.

I can think of a reason not to blog during the waiting around phase. I was once called for jury duty, and as it happened, when I stopped to pick up some gum and reading materials at the court's newsstand, I heard a couple of lawyers behind me talking about a case, trying to work out a deal. Lo and behold, when I later found myself in voir dire, guess who the lawyers were? Yes, the very same. Needless to say, I never served on that jury. But what if I had blogged about the conversation I had overheard? I would have done so in all innocence, not knowing these two were going to be the very lawyers on the case I was going to be asked to maybe serve on the jury for, but imagine another potential juror is there in the waiting around room too, and he or she happens to read what I blog, and only later puts two and two together, after the jury deliberations begin. Might it influence them? I think it could. It surely influenced me, and it wasn't hard for me to grasp, maybe because I'm a paralegal, the relative merits of the case as they saw them.

Someday, I expect the jury admonitions will include specific instructions on blogging. Here's what the jury in Iowa listens to every Friday:

THE COURT: Couple things, members of the jury. I have received two questions from jurors, one regarding Mark Chestnut and the other regarding Richard Freedman.

The Court informs you that the questions can't be answered at this time and does not know if they will be answered.

Also, as I stated I was going to do on every Friday, I'm going to read the admonition to you.

So sorry if it's repetitive, but it's a good idea, and we're going to take our recess for the weekend.

We'll have you report back at 8:30 a.m. on Monday.

Under your oath as jurors in this case, you are admonished that it is your duty not to permit any person to speak with you on any subject connected with the trial of this case.

You are not to talk with any of the parties, their attorneys, or witnesses during the trial, even upon matters wholly unrelated to this trial.

Should anyone try to discuss this case with you or in your presence, you should not listen to such conversation. You should immediately walk away.

If any person should persist in talking to you, try to find out their name and report it immediately to the Court.

You also are admonished not to converse among yourselves or with anyone, including family members, on any subject connected with the trial of this case.

You should not form or express an opinion on this case and you should keep an open mind until you have heard all of the evidence, the statements and arguments of counsel, the instructions of the Court, and the case is finally submitted to you and you have been -- and you have retired to your jury room to deliberate.

Not only must your conduct as jurors be above reproach, but you must avoid the appearance of any improper conduct.

You must avoid reading, listening to, or watching news accounts of this trial, if there should be any.

You also should avoid looking on the Internet or on websites concerning matters having to do with this trial or with the parties.

Sometimes such accounts are based upon incomplete information or contain matters which would not be admissible in Court and could unduly influence your ultimate decision.

You may not visit or investigate the scene of this occurrence unless directed to do so by the Court.

I don't know why I keep adding that in, but it's in there.

As a jury you are the judge of the facts, while the Court is the judge of the law.

During the course of this trial, I will be required to decide legal questions, and before you leave to deliberate this case, the Court will instruct you on the law you are to follow in reaching your verdict.

You should give careful attention to all of the testimony as it is presented to you, for you will only hear it once and you must depend upon your recollection of the testimony when deliberating in your jury room. But, as stated before, do not form an opinion and keep an open mind until all of the evidence has been received.

From time to time during the trial the Court will be required to confer with the attorneys upon points of law that require only the consideration of the Court. These conferences will be conducted outside the presence of the jury. It is impossible to predict when these conferences will be required or how long they may last. However, these conferences will be conducted so as to consume as little of your time as possible while still being consistent with the orderly process of the trial.

Also, from time to time during the trial, the Court will be required to rule on objections or motions of the lawyers.

You should not infer anything by reason of the objection, nor may you infer anything from the rulings on the objections or that the Court has any opinion one way or the other concerning the merits of the case.

If an objection to a question of a witness is made and the objection is sustained and the witness is not permitted to answer, you should not speculate on what the answer may have been nor may you draw any inference from the question itself.

Additionally, until your jury room, you must not refer to or give consideration to any testimony which may have been given, but then was stricken from the record by the Court.

Also, the lawyers in this case are under an obligation not to talk with you. Do not consider them to be aloof if they do not greet you outside of the courtroom. They are merely abiding by their own rules of ethics and the rules of the Court.

So at this time, hope you have a great weekend.

Leave your notebooks here. We'll lock them up.

We'll see you on Monday. Drive safely.

I'm sure you can see how hard it is to be a juror. When your husband or wife comes home and asks, "How was your day?" you can't even tell. And the hardest part is you can't form an opinion until you have heard *all* the evidence. I'm sure that is a struggle, to try to keep an open mind, once you've heard, say, three-quarters of a case, but it's truly vital, because there could be a piece of evidence entered the very last day that ought to change your mind but won't if your mind is closed to new information. Why have such a rule? One of the attorneys polled about jurors blogging by, J. Craig Williams, who blogs at May It Please The Court, mentioned this:

"When you sit as a juror, you are not permitted to discuss the case with anyone during the trial. This prohibition prevents jurors from making pacts to decide cases a particular way or prejudging a case. As a juror, you must wait until all the evidence is in before you can make up your mind, and then you must participate in the deliberative process with the other jurors, discussing everyone's impression of the evidence, and its consequences. That way, the group of jurors make the decision, not any one or any subgroup of people.

A jury isn't supposed to be like some reality shows, in other words, where individuals conspire together to achieve a certain outcome or bullying takes place to force someone to go along. You are supposed to think for yourself, and it's hard to do that if everyone else in the room is telling you you're wrong. So the idea is to protect your thinking and deliberative process from outside influence of any kind, so you reach your own conclusion. *Then* everyone else can try to persuade you otherwise, if that is the dynamic, and you can tell why you reached the conclusion you did, in an effort to persuade them.

What about your right to free speech? Well, it has to be balanced by the right of the defendant to a fair trial, and mostly that will trump your free speech. Sorry, but if you are ever a defendant, you'll be glad. It's a temporary limitation, after all. In the article about blogging and jury duty, Wendy Selzer, whose blog is here, pointed out the inherent conflict in the two roles, juror and blogger:

"I agree with Lauren here. Bloggers are free to report on other trials, in which they're not jurors, but they shouldn't attempt to be both judge and witness when called for jury duty.

"Real-time reporting from within the jury box could hurt the dynamic of the jury, where jurors are supposed to decide facts based on evidence presented to them, in deliberations with their fellow jurors. For example, someone who had publicly blogged a position based on opening statements might be more reluctant to shift his or her opinion to take later evidence into account.

"Trackbacks, or comments, on a blog could be even greater concern: We deliberately shield jurors from some facts, such as evidence gathered in violation of Fourth Amendment protections, and ask them not to discuss pending cases with the outside public.

"After the trial concludes, I think it can be blogged -- respectful of other jurors' privacy and any limits set by the judge."

Those are the two that are probably the hardest, but it must be quite difficult to put out of your mind things the judge and you heard and he then decides should be stricken, but jurors must try.

By the way, you might enjoy reading Selzer's analysis of Microsoft Vista's license, which begins like this:

Reading the Windows Vista license is a bit like preparing for breakfast with Lewis Carroll's Red Queen: You should be ready to believe at least six impossible things about what users want from software.

It is unlikely that a home user looking for a computer operating system has any of these "features" of the Vista EULA in mind:

1. Self-limiting software
2. Vanishing functionality through invalidation
3. Removal of media capabilities
4. Problem-solving prohibited
5. Limited mobility
6. One transfer only
and a bonus,
7. Restrictions on your rights to use MPEG-4 video

Details below.

Also, if you clicked on the link to Lauren Gelman's blog, you probably noticed that there will be an interactive seminar on Search and Seizure in the Digital Age tomorrow. If you are in Californis, you can attend free at Stanford Law School, beginning at 8:30 AM their time and running until 6 PM, but they'll be posting papers by the speakers on the future of the 4th Amendment in this digital age, and they invite comments:

To facilitate public discussion of the ideas presented in the symposium, abstracts and working drafts of the papers will be posted on the STLR site as they are completed. STLR invites anyone who wishes to participate to post comments regarding the papers on the site, which the authors can review and use to help refine their articles. The drafts will be available for comments through January 25, 2007. The final versions of the articles will be published on the site in the spring.

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