TN Judicial Ethics Committee Issues Advisory to Judges on Social Media

The Tennessee Judicial Ethics Committee recently released an advisory opinion regarding judges and proper social media etiquette, something that legal experts have seen land judges across the country in controversy recently. In an attempt to avoid some of the same problems in Tennessee, the Committee is attempting to convey how important it is for judges to choose their online “friends” wisely.

Just last year a judge a Philadelphia was under scrutiny after prosecutors discovered he was friends with a man whose drunk driving case was before him. The judge threw out several key parts of his case. In North Carolina, another judge was reprimanded after he became friends with an attorney who was representing one of the parties in a divorce case in his court. The judge went so far apparently as to discuss details of the case with the attorney, including a possible affair by one of the parties.

To date no such situations have been reported in Tennessee, but many believe that with the ubiquitous nature of social media a conflict will eventually arise. Others think that an unscrupulous lawyer with time on their hands could do some digging in an attempt to get a judge thrown off of a case even under innocent circumstances.

The advisory opinion says the biggest impact will be on new judges who may have to ‘de-friend’ some lawyers or parties they were already friends with who might pose problems down the road. Anyone who may appear in their court one day cannot be seen as having special sway with the judge, according to the opinion.

The impetus behind the advisory opinion was a question from a lawyer who as a new judge wondered if he had to de-friend his existing lawyer friends. The answer, according to the Ethics Committee, is no--though it could potentially be problematic. The opinion says that judges should of course avoid sharing any sensitive information or discussing cases, but using social media as a means of keeping in touch with friends and sharing family updates shouldn’t be a problem.

Tennessee joins the ranks of many other states that have addressed the issue by not an outright ban of social media for judges. There are some states, for example Florida, that have banned judges from being e-friends with lawyers who appear in their courtrooms.

The Ethics Committee concludes that while judges are allowed to participate in social media, they should use caution when doing so. Any judge must also expect that their use of social media will be scrutinized by others and thus “must be constantly aware of ethical implications as they participate in social media and whether disclosure must be made.”

Read: “In social media, judges and 'friends' don't always mix,” by Lawrence Buser, published at CommercialAppeal.com.

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TN Supreme Court to Review Case Involving Facebook Messages

By Jay Perry

             In a case that is emblematic of the potential problems with digital communication during jury trials, the Tennessee Supreme Court has granted review in State v. William Darelle Smith.  The case, which is an appeal from a conviction of First Degree Murder involves Facebook messages sent between a juror and the medical examiner during the trial. 

After the medical examiner had concluded her testimony, the juror sent a message stating that the juror recognized the witness and “thought you did a great job today on the witness stand”.  The message also stated the juror’s belief that “you really explained things so great!!”  The medical examiner responded that “I was thinking that was you” and recognizing the impropriety added “there is a risk of a mistrial if that gets out”. To the medical examiner’s credit, she notified the trial court of these communications.

Despite the trial court’s knowledge of this contact, it refused defense counsel’s request to question the juror further regarding the Facebook communications.  At the Court of Criminal Appeals, the appellate court rejected the defendant’s appeal finding the communication to be merely a “social communication” and no evidence that the juror was seeking extra or improper information about the case. 

It seems likely that the Supreme Court granted review in order to better outline how to control digital communication and information gathering during trials.  The most recent case law cited in the Court of Criminal Appeals decision is from 2000 and it seems that this issue deserves some new guidance to trial courts throughout the state.  Not only in terms of communication but now additional information is available to any juror with a simple Google search.  While there is only so much a trial court can do to control jurors and their access to information, it is important that such communications do not comprise the defendant’s right to a fair trial.   It seems appropriate that the trial court with knowledge of potentially inappropriate communications or other technology usage would at the least make further inquiries.

 

It will be interesting to see what happens with this case and whether the Court finds that what happened here mandates a new trial.  The Court of Criminal Appeals decision can be read here.