Applying the Rules of Discovery to Information Uncovered About Jurors

As more and more personal information is placed online, attorneys are increasingly turning to the internet to investigate and research jurors. In certain jurisdictions, the practice has become fairly commonplace. One prominent trial consultant has gone so far as to claim, “Anyone who doesn’t make use of [internet searches] is bordering on malpractice.” While this may somewhat overstate the importance of investigating jurors online, it nonetheless demonstrates just how routine the practice has become. Aside from increased acceptance among practitioners, courts have both approved of and encouraged online investigation of jurors. While many view this practice as a benefit to the legal system because it helps identify dishonest and biased jurors and works to limit juror misconduct, it is not without critics. This Article examines the positive and negative aspects of legal professionals investigating jurors online and offers a proposal that, if implemented, should dull some of the criticism associated with the practice. Specifically, this Article proposes that the Advisory Committee on Criminal Rules of the Judicial Conference of the United States make certain juror information uncovered by attorneys in criminal trials subject to the rules of discovery

Investigating Jurors in the Digital Age: One Click at a Time

The Internet has resurrected the practice of investigating jurors. Thus, there is a growing need for more research and study on this topic to better understand its impact on the legal system and society as a whole. This Article attempts to fill the current void by taking an in-depth look at online juror investigations. In Part II, this Article offers an overview of juror investigations by attorneys. Here, the Article focuses on the evolution of the practice. In Part III, the Article examines the benefits of the practice to both the legal system and attorneys. This Part demonstrates that more information about jurors improves the jury-selection process and reduces the likelihood of juror misconduct. Part IV addresses the two main drawbacks associated with investigating jurors: juror privacy and full disclosure. In discussing juror privacy, this Article challenges the notion that the current methods of investigating jurors are overly intrusive. This Article then examines the issue of full disclosure and identifies it as an area ripe for reform. Finally, this Article, in Part V, analyzes two proposals that would require attorneys to reveal certain information discovered about jurors to either the court or opposing counsel

The Growing Importance of Advance Medical Directives in the Military

While the litigation in the Terri Schiavo case is an extreme example of what can go wrong in the health care decision-making process, it highlights the importance of advance medical directives (AMD) in helping to ensure patient autonomy during end-of-life medical treatment. Unfortunately, large segments of society, to include the military, are still unclear about the role of AMDs in patient care. Thus, this article provides a broad overview of AMDs and their legal applications with a particular emphasis on expanding their use in the military community. This article begins with a discussion of living wills and durable powers of attorney (DPOAs), demonstrating how each one individually and or combined with the other form the component parts of an AMD. The second section of this article briefly explores the legal bases supporting AMDs. The third section provides a history of AMDs in the military followed by recommendations on how to better implement and craft AMDs; including proposed changes to the two Department of Defense (DOD) directives that address AMDs. The article concludes with a model AMD

“Liking” the Social Media Revolution

As in other areas of society, social media has significantly influenced the law. Currently, civil and criminal cases can, and often do, turn on an attorney\u27s understanding and use of social media. In the realm of family law, most practitioners view social media as an essential tool-one that could serve as grounds for malpractice if ignored. Even in legal academia-an area long resistant to change-law schools are starting to understand the impact of social media on the law and offer courses like Social Media and Criminal Law and Law and Social Media. The goal of this essay is not to address the myriad ways social media has influenced the legal field. It could not adequately do so, because there are now entire books examining social media\u27s role in such areas as criminal law and litigation. Instead, this essay has a much more narrow focus; it will examine one feature of one social media platform to illustrate how the legal system has addressed the ever expanding role of social media within the law. More specifically, this essay will explore Facebook\u27s Like button and look at its impact on constitutional issues as well as labor, property, and evidentiary laws

The Challenges of Preventing and Prosecuting Social Media Crimes

Wanted: Caretaker For Farm. Simply watch over a 688 acre patch of hilly farmland and feed a few cows, you get 300 a week and a nice 2 bedroom trailer, someone older and single preferred but will consider all, relocation a must, you must have a clean record and be trustworthy—this is a permanent position, the farm is used mainly as a hunting preserve, is overrun with game, has a stocked 3 acre pond, but some beef cattle will be kept, nearest neighbor is a mile away, the place is secluded and beautiful, it will be a real get away for the right person, job of a lifetime—if you are ready to relocate please contact asap, position will not stay open. This Craigslist ad was posted in 2011 by two residents of North-Central Ohio, Brogan Rafferty (age 16 at the time) and Richard Beasley (age 52 at the time). Of the four individuals (2 from within Ohio and 2 from outside of Ohio) who came to the farm to interview for this job posting, 3 were killed and robbed by Rafferty and Beasley. The fourth victim was shot but managed to escape and contact authorities. Both Rafferty and Beasley were apprehended, tried, and convicted. Rafferty was sentenced to life without the possibility of parole and Beasley is currently on Ohio’s Death Row. For those bent on committing crimes, like Rafferty and Beasley, social media has opened up a whole new world. It has become the place where criminal defendants not only commit crimes, but also organize, plan, discuss, and even boast about their illegal activity. Numerous criminal defendants ranging from Fortune 500 corporate officers to street level petty thieves have used social media to facilitate their criminal conduct. Social media has even garnered the attention of criminal gangs. This in turn has led commentators to coin new phrases and terms like “cyberbanging.” The adoption and use of social media by a broad spectrum of criminal defendants has raised some significant challenges for those tasked with crime prevention. This article will look at those challenges through the lens of three cases involving social media: United States v. Drew, United States v. Sayer, and United States v. Cassidy. However, prior to beginning that examination, this article will briefly discuss and categorize the various ways criminal defendants employ social media

An Insurrection Act for the 21st Century

As the Hurricane Katrina relief effort illustrates, both Governor Blanco and President Bush, like previous elected officials before them, struggled to properly and promptly deploy federal troops during a domestic emergency. This shortcoming was due to problems associated with: (1) interpreting the Insurrection Act; (2) federalism; and (3) public opinion. This article, divided into four parts, attempts to resolve those problems, or at least decrease the likelihood of their recurrence, by offering suggestive changes to the Insurrection Act. Part II provides a general overview of the Insurrection Act. It begins with a brief discussion of two early episodes of civil disorder: Shays’ Rebellion, the catalyst for the Insurrection Act, and the Whiskey Rebellion, which provided the first test of the statute. Part II concludes with the Insurrection Act’s codification. Part III examines the most recent effort to clarify or update the Insurrection Act, the Enforcement of the Laws to Restore Public Order Act (Enforcement Act). The Enforcement Act, often viewed as a power grab by the Executive Branch, was passed in the immediate aftermath of Hurricane Katrina and repealed shortly thereafter. While generally supportive of the Enforcement Act, Part III asserts that it would have had little effect on the government’s response to Hurricane Katrina. This is because the Enforcement Act, while adding clarity to the Insurrection Act, failed to address the two other major issues associated with deploying the military domestically: (1) federalism, or state and federal relations; and (2) public opinion. Thus, like the Insurrection Act, President Bush probably would not have invoked the Enforcement Act in response to Hurricane Katrina. Part IV offers possible solutions beyond the Enforcement Act to both reduce federal-state friction and minimize the negative impact of public opinion when federal troops are used domestically. For instance, Part IV suggests creating uniform standards by which governors can request military assistance from the President. Part IV also advocates reinstating judiciary advisory opinions to help determine when troops should be deployed domestically

Preventing Juror Misconduct in a Digital World: A Comparative Analysis

This article examines the reform efforts employed by common law countries to address internet-related juror misconduct, which generally arises when jurors use technology to improperly research or discuss a case. The three specific areas of reform are (1) punishment, (2) oversight, and (3) education. The first measure can take various forms ranging from fines to public embarrassment to incarceration. The common theme with all punishments is that once imposed, they make citizens less inclined to want to serve as jurors. Therefore, penalties should be a last resort in preventing juror misconduct. The second reform measure is oversight, which occurs in one of two ways. Under the first method, oversight is conducted by attorneys and court officials. Under the second method, oversight is conducted by the jurors themselves through self-policing. The third reform measure involves education, which occurs both inside and outside of the courtroom. When done outside of the courtroom the education primarily occurs in the school system. Education inside the courtroom involves juror questions, instructions, and oaths. The purpose of this article is to examine the various ways common law countries have used different types of punishment, oversight, and education to help stem the tide of internet-related juror misconduct. To date, no one country has completely solved this multi-faceted problem. However, this is not to say that various countries cannot learn and adopt practices from each other. For example, to determine the effectiveness or deterrence value of imposing tougher penalties on jurors, one might study Britain, which has taken a hard line on juror misconduct. Similarly, those jurisdictions that believe that jury instructions are the best way to solve juror misconduct should review the in-depth jury instructions employed by the United States

Google, Gadgets, and Guilt: Juror Misconduct in the Digital Age

This article begins by examining the traditional reasons for juror research. The article then discusses how the Digital Age has created new rationales for juror research while simultaneously affording jurors greater opportunities to conduct such research. Next, the article examines how technology has also altered juror-to-juror communications and juror-to-non-juror communications. Part I concludes by analyzing the reasons jurors violate court rules about discussing the case. In Part II, the article explores possible steps to limit the negative impact of the Digital Age on juror research and communications. While no single solution or panacea exists for these problems, this article focuses on several reform measures that could address and possibly reduce the detrimental effects of the Digital Age on jurors. The four remedies discussed in this article are (1) penalizing jurors, (2) investigating jurors, (3) allowing jurors to ask questions, and (4) improving juror instructions. During the discussion on jury instructions, this article analyzes two sets of jury instructions to see how well they adhere to the suggested changes proposed by this article. This is followed by a draft model jury instruction. As part of the research for this article, this author conducted one of the first surveys on juror conduct in the Digital Age. The survey was completed by federal judges, prosecutors, and public defenders throughout the country. The Jury Survey served two purposes. First, it was used to determine the extent of the Digital Age’s impact on juror communications and research. Second, it operated as a barometer for the reform proposals suggested by this article

The Grand Jury Legal Advisor: Resurrecting the Grand Jury’s Shield

This Article advocates for the creation of a Grand Jury Legal Advisor (GJLA) to resurrect the historical autonomy of grand juries. The Article draws upon Hawaii\u27s experiences with the GJLA, and incorporates survey responses from a representative sample of former GJLAs. The Article begins with a general and historical overview of the grand jury process. This portion of the Article demonstrates how all three branches of government have contributed to the diminishment of the powers of grand jurors. Part IV of this Article discusses the important policy rationales underlying the need for grand jury autonomy; Part V recommends the implementation of a GJLA to re-establish that independence. Finally, Part VI reviews the potential advantages and disadvantages of employing GJLAs, including possible benefits to federal prosecutors. This Article concludes that the GJLA strengthens the traditional role of the grand jury as a shield against unwarranted government accusations while still permitting grand jurors, prosecutors, and witnesses to perform their long-established functions. Moreover, the Article asserts that incorporating the GJLA, which has seen considerable success in both Hawaii and the military, throughout the federal court system would allay fears that the grand jury is merely a tool of the prosecutor. Finally, contrary to the false assumptions of some observers, the GJLA could potentially aid federal prosecutors without unduly slowing the indictment process

Social Media Law in a Nutshell

Social media has transformed how the world communicates. Its impact has been felt in every corner of our society including the law. Social Media Law in a Nutshell is a wide-ranging look of how the social media transformation has impacted various legal fields. From marketing to employment to torts to criminal law to copyright and beyond, virtually every legal field has been changed by social media. By looking at high level concerns and example cases, Social Media Law in a Nutshell attempts to give practitioners exposure to social media issues and concerns so they can better advise clients and approach the new social media world with their legal eyes opened to new and old risks alike. This book can also serve as a text for law professors looking to expose law students to the burgeoning area of Social Media Law