Juror Must Disclose Content of Posts to Judge

A juror who posted comments on his Facebook page during a trial must give the trial court judge a copy of all of his posts, including deleted posts.

A California appellate court found that the trial court was correct in ordering the juror to produce to the court for review all of his posts to determine if the juror commented on evidence as it was being presented during the two-month trial, which resulted in the conviction of several defendants related to various offenses from an assault.  However, the appellate court said that the trial court was wrong to base the order on the Stored Communications Act (SCA).  Instead, the trial court had the authority to order the juror to produce the posts independent of the SCA.

The case arose when the defendants questioned whether some of the jurors had engaged in misconduct by posting comments to their Facebook pages.  The judge questioned several of the jurors.  One juror stated that he had posted comments on his Facebook page during the trial, but he denied that the comments referenced testimony.  He also admitted that he had deleted some of his posts.  The trial court reviewed some of his posts.  The defendants issued a subpoena requesting that Facebook produce all of his posts, including those that were deleted.  Defendants also issued a subpoena to the juror for all of his posts, including those that he had deleted.  The juror argued that his posts were protected by the SCA, the Fourth Amendment, and the Fifth Amendment.

The trial court ordered the juror to sign a “consent” under the SCA allowing Facebook to release the deleted posts for an in camera review.  The appellate court found that the juror failed to present sufficient evidence to show that the posts were protected under the SCA.  In addition, the appellate court said it did not matter because the court could directly order the juror to produce the deleted posts.

As to his arguments that he had a reasonable expectation of privacy to the posts under the Fourth Amendment, the appellate court again found that the juror failed to show that he had an expectation of privacy in the posts and, “in any event, those privacy rights do not trump real parties in interest’s right to a fair trial free from juror misconduct.  The trial court has the power and the duty to inquire into whether the confirmed misconduct was prejudicial.”

Finally, the appellate court said the juror’s claim under the Fifth Amendment at this point is “speculative.”

Juror Number One v. The Superior Court of Sacramento County, Calif. App. Court No. C067309, filed May 31, 2012.