Technology, Social Media & the Impact on the Courts Marcus Reinkensmeyer, Court Administrator Jessica Funkhouser, Special Counsel Superior Court in Maricopa County.

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Transcript Technology, Social Media & the Impact on the Courts Marcus Reinkensmeyer, Court Administrator Jessica Funkhouser, Special Counsel Superior Court in Maricopa County.

Technology, Social Media & the
Impact on the Courts
Marcus Reinkensmeyer, Court Administrator
Jessica Funkhouser, Special Counsel
Superior Court in Maricopa County
Social Media Revolution
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YouTube Video: Social Media
Revolution 2
http://www.youtube.com/watch?v=l
FZ0z5Fm-Ng
What is “Social Media”?
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“Use of web-based and mobile
technologies to turn communication
into interactive dialogue” – Wikipedia
Electronic communication via internet
and mobile-based tools
Interactive
Networking
Sharing opinions, information &
content
Building communities and networks
Encouraging participation and
engagement
Examples
Facebook – status updates,
photos, videos, check-in
 MySpace – similar posts
 LinkedIn – professional
networking
 Twitter – 140-character updates
 Blogs – anonymous and not
 YouTube – on-line videos and
blogging
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How to Access “Social Media”
Home and office computers
 Laptops, netbooks & tablets
 PDAs
 Cell phones, Smartphones
 Web TV
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Smartphone Capabilities
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Access the internet
Photos – take, send, receive, edit
Videos – ditto
E-mail – synch with office and
personal accounts
Read & edit documents
Skype and FaceTime
Tunes
“Apps”
Apps
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Google search
Maps – including satellite and street
view
Facebook
GPS
Twitter
Newspapers, magazines, books
Wikipedia Mobile
Angry Birds & other games
Pandora Radio
How Many Apps?
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Apple’s App Store opened July 10,
2008
 January 2011 – 350,000 apps
 May 2011 – 500,000
Google’s Android market should
surpass Apple by July 2011.
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Apple Talk, Josh Lowensohn (May 24, 2011)
Opportunities –
Reaching a Broader Audience
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Large segments of the
population are using social
media
 Young people = largest group
 And even Baby Boomers =
largest increase in Facebook
users: women 55 and older
 Reporters
“Facebook Demographics Revisited –
2011 Statistics”
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Web Business by Ken Burbary, Mar 7, 2011
“Facebook Numbers Feed IPO
Outlook”
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The Wall Street Journal, WSJ.com,
Geoffrey A. Fowler (May 1, 2011)
Facebook on track to exceed $2
billion in earnings
It is one of the largest technology
companies
More than 600 million users, who
share photos, Web links and
tastes….
Facebook Statistics
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200 million people access Facebook
via a mobile device each day
More than 30 billion pieces of
content are shared each day
Facebook generates a staggering
700 billion page views per month
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Source: facebook.com
Where Do Young People Get News?
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Where do young people get their
political news and information?
http://www.youtube.com/watch
?v=DKm6JYCfDLs
YouTube – Others are Posting
Information About the Court
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Posting video clips from court’s “For
the Record” system
Arizona’s court records rule requires
release to individuals/media upon
request (with exceptions - Rule 123)
Or filmed by media camera in the
courtroom (Rule 122)
Some go “viral”
Then people blog about the video
DMX on YouTube
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http://www.youtube.com/watch?v=
5EtET9Va9oM
YouTube: Officer Swipes Notes From
Lawyer
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http://www.youtube.com/watch?v=
UIoyJ-LyAaE
“Who Tweets?”
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Pew Research Center, Aaron Smith &
Lee Rainie (Dec. 9, 2010)
“Do you ever use the internet to use
Twitter or another service to share
updates about yourself or to see
updates about others?”
August 2008 – 6% of internet users
Sept. 2010 – 24% of internet users
Twitter Use
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Young adults 18-29
Minority internet users more than
twice as likely to use Twitter
Urban residents roughly twice as
likely
Women and college-educated
slightly more likely than average
24% of Twitter users check several
times a day
Opportunities – Facebook
Community Outreach
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Access to court services
Self-help forms
Public information
Seminars for the public
New court services
Awards
Special projects
Volunteer opportunities
Job openings
Court locations & parking
Opportunities – Twitter
Speed of Communication
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“Real-time” communication by
Court PIOs
 Posting directly from courtroom
vs. adding content to websites or
sending emails from office
 Immediate release vs. delayed
press releases
 Fewer phone calls to/from media
& public
Opportunities – Directs Court
Customers to Court’s Website
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Tweets
 “Initial Appearance Video for Earl
Simmons (DMX) is now on
website”
 High Profile case site has been
updated on court’s website
Opportunities – Reporters
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Ensures they receive accurate
information
Ensures they get information the
Court wants them to have
Fewer reporters in courtrooms,
taking up seats and places in long
security lines
Media relations improved
“Massachusetts Brings Social
Networking to the Courtroom”
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Yahoo News, Molly McHugh (May 2,
2011)
OpenCourt experiment
Partnership between court and
Boston NPR station
Allows “journalists, bloggers, and
anyone with an iPhone to use Wi-Fi
to create real time updates and live
stream cases as they unfold.”
OpenCourt = camera = transparency
= democracy?
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Goal: “foster openness of the American
courts with the idea that more
transparent courts make for a stronger
democracy.”
Controversy: invasion of privacy –
defendant doesn’t want public to view
his trial at home
Defense attorney: fraught with perils –
attorney’s conversation can be picked
up
Judge has discretion on whether stream
goes live; can protect witnesses, etc.
Tweets re: WikiLeaks Founder’s
Hearing
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One reporter told his Twitter
followers: “judge just gave me
explicit permission to tweet
proceedings ‘if it’s quiet and doesn’t
disturb anything’”.
Another reporter added: “In an
amazing nod to the fact we live in
digital age, judge has said we can
tweet.”
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The Telegraph, Shane Richmond (Dec. 15, 2010)
News Flash from Arizona - 1979
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Since 1979, Rule 122, R.Ariz.S.Ct.,
permits cameras in the courtroom
Proceedings have been live-streamed
from Arizona courtrooms for years
Reporters, the public and Court PIOs have
been blogging & tweeting directly from
the courtroom
No telephone photos – any photography
must be pursuant to Rule 122, with the
Court’s permission
Pitfalls: “As Jurors Turn to Web,
Mistrials are Popping Up”
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New York Times, John Schwartz (Mar.
18, 2009)
9 jurors doing internet research
during federal court trial
Juror posted updates on Twitter and
Facebook during a federal corruption
trial
Pitfalls – Misconduct / Mistrials
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Lawyer disbarred for blogging while
serving as a juror
New trial sought because 5 jurors
became Facebook friends and
“changed jury dynamics”
Maryland murder conviction
reversed when juror researched
definition of “lividity” on Wikipedia
“Google” Mistrials
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Juror watched an A & E report on
the case
Jurors texted during trial & chatted
with bailiff, and prosecutor posted a
ditty about the trial on Facebook
Defendant “tweeted” during trial
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“Until today I never understood the
true depth that ineffective counsel
could achieve. The 6th Amendment
screams for justice.”
More Juror Issues
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Prospective juror in Casey Anthony
trial posted info about the trial on
Facebook, including “Book coming
soon.” www.wesh.com, May 14,
2011.
Judge denies post-trial request to
inspect internet records of juror.
Dayton Daily News, Denise Callahan
(May 23, 2011)
Arizona’s “Google” New Trial
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Aguilar v. State, 224 Ariz. 299,
230 P.3d 358 (App. 2010)
Bailiff discovered “extraneous
documents” in foreman’s notebook
Reported to counsel
Motion for new trial
Trial judge held full evidentiary
hearing
Aguilar v. State – Facts
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Foreman “Googled” – “first degree
murder Arizona”
Printed definitions and brought
them to jury room
Juror 9 researched “premeditation”
Jurors discussed and considered
these definitions
They were “significantly different”
than the Court’s instructions
Aguilar v. State – Facts
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Foreman “considered” his research
Juror 9 – confused but then internet
definition “solidified my thinking”
Juror 11 – definitions “helped me
understand”
Juror 2 – the jury “considered”
them & information was “important”
Juror 7 – agreed it was “important”
in the juror’s deliberation process.
Aguilar v. State – Law
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State must prove beyond a
reasonable doubt that the
misconduct did not taint the
verdicts.
Defendant is entitled to new trial if
it cannot be concluded beyond a
reasonable doubt the extraneous
information did not contribute to
the verdict.
Aguilar v. State –
Factors to Consider
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1. Importance of the word or phrase
being defined to the resolution of the
case
2. Extent to which the dictionary
definition differs from the jury
instructions or from the proper legal
definition
3. Extent to which the jury discussed
and emphasized the definition
Aguilar v. State – Factors
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4. Strength of the evidence and
whether the jury had any difficulty
reaching a verdict prior to
introduction of the dictionary
definition
5. Any other factors that relate to a
determination of prejudice
Aguilar v. State – Holding
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Because state failed to prove
beyond a reasonable doubt the
jurors’ misconduct did not taint
those verdicts, defendant is entitled
to a new trial.
Imagine the Possibilities!
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Jurors have the ability to look at the
crime scene street view on line on
their Smartphones
More Possibilities
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Jurors can “Google” the lawyer,
defendant, witnesses, judge
Jurors can “follow” a reporter who is
covering the trial on Twitter
Jurors can “follow” the defendant on
Twitter
Jurors can access attorney’s,
defendant’s and judge’s Facebook
pages
Other possibilities?
Banning Cell Phones in Courts?
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“Can You Hear Me Now”
The Court Manager, Nora Sydow
(July 2010)
Many cell phones have cameras now
Reasons to ban them:
 Security risks
 Disruption of proceedings
 Possible improper research by
jurors during trial & deliberations
“Can You Hear Me Now?”
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“Banning such technologies from
the courts is growing increasingly
difficult and impractical”
Reasons Not To Ban Them
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Staff time and delay in “bagging
and tagging” cell phones
Makes jury service even less
attractive and more cumbersome
Cell phones becoming more
“essential” to our lives
More Reasons Not To Ban Them
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The only way some lawyers can
check calendars for availability
Gives people something to do during
down time (e-book vs. paperback)
Longer lines … late arrival for hearing
Liability for loss or damage of bagged
and tagged phones at security station
Media criticism: attempt to “shield
the workings of the courthouse from
public scrutiny”
The Reality
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“Technology is so ubiquitous. For
many people, it’s their way of life.
They tweet, they blog, they look up
things online. It’s literally in their
pocket. It’s their routine. You can’t
just tell people they can’t do this and
that. You have to tell them why
and the consequences.”
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Eric Robinson, Attorney, Deputy Director of the
Reynolds Center for Courts and Media, University
of Nevada, Reno, “Juror’s Research Led to Murder
Mistrial,” standardspeaker.com (Jan. 17, 2011)
More Reality
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“It’s really difficult to control because
people in this day and age have an
expectation of instant access to
information. It’s an automatic
impulse for some people. When they
do it, even if they should know
better, their real ambition in doing it,
is trying to understand matters they
recognize as being important.”
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Dr. Douglas Keene, Keene Trial Consulting,
Austin, Texas, Id.
Resource for Electronic Device
Policies
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National Center for State Courts
(NCSC)
Links to state cell phone and
electronic device policies
NCSC Mobile Device Policy
Development Checklist
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Stakeholder input?
Will devices be allowed? – specific
areas?
Who will policy cover?
What devices are covered?
Permitted uses?
Enforcement?
How will policy be distributed?
Researching Prospective Jurors
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“Tech Check”
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ABA Journal, Stephanie Francis Ward
(July 1, 2010)
Paralegals carrying laptops with 3G
wireless cell phone lines check
social media sites for info on jurors
as names are called
Lawyer had 2 employees in the
courtroom and 1 back at the office
researching each prospective juror
Juror Research Issues
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Does a judge have a duty to protect juror
privacy?
Does this research invade juror privacy?
Is there a First Amendment right to see
information accessible to anyone in the
public posted about prospective jurors?
Can you prohibit attorneys from doing
this type of research on jurors?
Is it unethical for an attorney to do this?
Is it ineffective representation not to do
this?
Can Ban on Tweeting Be Enforced?
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“Twitter Posts Make Enforcing U.K.’s
Media Super-Injunctions a ‘Nightmare’”
 Bloomberg.com, James Lumley (May 9,
2011)
In the U.K. courts can issue a superinjunction prohibiting writing about extramarital affairs, etc., of celebrities
But they are finding it impossible to
enforce if posted on Twitter, a U.S.
company
And in the U.S., there’s the First
Amendment
Instructions for Jurors
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Superior Court in Maricopa
County’s poster
 jury assembly room
 jury deliberation rooms
Jury Instructions
Superior Court in Maricopa
County’s jury instruction
(attached)
 Judicial Conference Committee
recommends a model rule on
electronic communication
 Ohio Courts’ new jury instruction
for social media use
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Pitfalls – Judicial Ethics
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South Carolina, Opinion No. 172009 (Oct. 2009)
Magistrate judge may be Facebook
“friends” with law enforcement
officers and employees as long as
no discussion of anything relating to
the judge’s position as a magistrate
judge
South Carolina Opinion
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“[a]llowing a Magistrate to be a
member of a social networking site
allows the community to see how
the judge communicates and gives
the community a better
understanding of the judge.”
Pitfalls – Judicial Ethics
Florida, Opinion No. 2009-20 (Nov.
17, 2009)
 Judges cannot accept lawyer
“friends” on Facebook or discuss
pending cases
 The “accepting” of friends or
allowing lawyers to list judge as a
“friend” creates the inappropriate
appearance
 Violates Canon 2B - impression of
special position to influence the
judge
Pitfalls – Judicial Ethics
Kentucky, Opinion No. JE-119 (Jan
20, 2010)
 May a Judge or Justice be on
Facebook, LinkedIn, MySpace or
Twitter and be “friends”?
 Answer: a qualified yes
 Facebook “friend” in and of itself
does not convey impression that
someone is in a special position to
influence judge
Kentucky Opinion Cautions
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Judges should be mindful of
whether on-line connections
combined with other facts rise to
the level of a “close social
relationship” that should be
disclosed or require recusal
Kentucky Cautions Cont’d
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Public sites are “fraught with peril”
“Pictures and commentary posted
on sites which might be of
questionable taste, but otherwise
acceptable for members of the
general public, may be
inappropriate for judges”
Ex Parte communications are
prohibited
Kentucky Cautions Cont’d
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Judges are prohibited from making
any public comment that might
reasonably be expected to affect
the outcome of a case or impair its
fairness
Judges cannot practice law or give
legal advice
New York & Ohio Allow “Friends”
New York, Judicial Ethics Advisory
Opinion 08-176 (Jan. 2009).
Ohio, Judicial Ethics Advisory Opinion
2010-7 (Dec. 2010)
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May use social network
Must comply with the ethics rules
Ohio Jud. Cond. Rule 1.2
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Must maintain dignity in every
comment, photograph, and other
information shared on the site
Ohio Jud. Cond. Rule 2.4(C)
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Must not foster social networking
interactions with individuals or
organizations if such
communications erode confidence in
the independence of judicial
decision-making
Must not convey the impression of
external influence
Ohio Jud. Cond. Rule 2.9(A)
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Should not make comments on a
social networking site about any
matters pending before the judge –
not to a party, not to a counsel for a
party, not to anyone.
Ohio Jud. Cond. Rule 2.9(C)
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Should not view a party’s or
witnesses’ pages and should not use
social networking sites to obtain
information regarding the matter
before the judge
Ohio Jud. Cond. Rule 2.10
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Should avoid making any comments
about a pending or impending
matter in any court
Ohio Jud. Cond. Rule 2.11(A)(1)
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Should recuse when the judge’s
social networking relationship with a
lawyer creates bias or prejudice
concerning the lawyer of party
There is no bright-line rule – “Not
all social relationships, on-line or
otherwise, require disqualification”
Ohio Jud. Cond. Rule 3.10
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A judge may not give legal advice
to others on a social networking
site.
Ohio – Summary of Advice
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“[A] judge should be aware of the
contents of his or her social
networking page, be familiar with
the social networking site policies
and privacy controls, and be
prudent in all interactions on a
social networking site.”
Seduced by Social Media?
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“Seduced: For Lawyers, the Appeal of
Social Media Is Obvious. It’s Also
Dangerous”
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ABA Journal, Steven Seidenberg (Feb. 1, 2011)
A North Carolina judge – Facebook
friend of attorney who had pending
case
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Public Reprimand of Terry, North Carolina Judicial
Standards Commission, Inquiry No. 08-234 (April 1,
2009)
North Carolina Cautionary Tale
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Attorney, “How do I prove a
negative?”
Judge, “I have two good parents to
choose from”
And “[the judge] feels that he will
be back in court” (i.e. the case had
not settled)
Attorney: “I have a wise judge.”
N.C. Judge
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Judge: “he was in his last day of
trial.”
Attorney: “I hope I’m in my last day
of trial.”
Judge: “You are in your last day of
trial.”
N.C. Judge
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Judge used internet to find
information about the wife’s
photography business
Viewed samples of photography and
poems
Quoted one of the poems in court
Public Reprimand
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Failure to observe appropriate
standards of conduct to ensure that
the integrity and independence of the
judiciary shall be observed
Ex parte communications with
counsel
Failing to act in a manner that
promotes public confidence in the
integrity and impartiality of the
judiciary
Public Reprimand
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Conducting independent ex parte online research about a party presently
before the court
Conduct prejudicial to the
administration of justice that brings
the judicial office into disrepute
Superior Court in Maricopa County’s
Facebook & Twitter Guidelines
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Pages of the Court; not individual
judges
Only designated PIO staff may post
and “Tweet”
 Trained in the judicial ethics rules
 Speak with “one voice” for the
Court
Maricopa Guidelines Cont’d
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Anyone who wishes to “like” the
Court on Facebook or “follow” on
Twitter may do so – no acceptance
required
“Anonymous” Blogging:
Another Cautionary Tale
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Judge from Cleveland, OH
Blogs about pending cases in her
court were posted from the judge’s
blog account (“lawmiss”)
Sometimes at times when someone
was logged in on her office
computer
Cautionary Tale Cont’d
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Newspaper released information
about the judge’s blogging
ID/account information
 Said it was in the public interest
Daughter says she was blogging;
not her mother the judge
Judge declined to recuse herself
Ohio Supreme Court
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“Although the record does not cause
me to question Judge Saffold’s
ability to be fair and impartial in the
underlying matter, the nature of
these comments and their
widespread dissemination might
well cause a reasonable and
objective observer to harbor serious
doubts about the judge’s
impartiality.”
Removed Judge from Case
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“[T]hese unfortunate postings have
created a situation that 'poses an
impediment to the judge's ability to
resolve any remaining legal and
factual issues in a way that will
appear to the parties and the public
to be objective and fair.' "
Judge Removed, Cont’d
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"An objective observer who has
read the online postings might
reasonably question why comments
about a defendant and defense
counsel appearing before the judge
were posted on the judge's personal
online account, even if the judge did
not make the comments herself."
Ohio Supreme Court
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“When the case becomes about the
judge rather than the facts of the
case and the law, it is time for the
judge to step aside.”
New Resources for Courts
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NACM Media Mini Guide
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Includes the topics of “social
media” and “new media”
NCSC Social Media & the Courts
Resource Guide on-line
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http://www.ncsc.org/Web%20Docume
nt%20Library/IR_BrowseByTopic.aspx
For Further Information:

Superior Court in Maricopa County
 Marcus Reinkensmeyer, Court
Administrator
 602-506-3190

Jessica Funkhouser
 602-717-2391