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Name: Juror Number One v. Superior Court
Case #: C067309
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 05/31/2012

Posting of entries on Facebook regarding the trial by a juror is misconduct and juror can be compelled to disclose the entries to the court to determine whether the misconduct is prejudicial. After a guilty verdict, it was discovered that during the trial, Juror Number One posted comments and solicited responses from “friends” about the trial on his Facebook page. The court conducted a hearing on juror misconduct and Juror Number One admitted that he posted the information while the trial was in progress. The court found that there had been clear misconduct but was unable to determine if it was prejudicial. It ordered Juror Number One to turn over his Facebook postings made during the trial for an in camera review and Juror Number One brought a petition for writ of prohibition against the order, which was denied. The Fourth Amendment provides no protection for information voluntarily disclosed to a third party, such as an Internet Service Provider (ISP). In 1986, the Stored Communications Act (SCA) was created, limiting the government’s ability to compel ISP’s to disclose customer information. Juror Number One contended that Facebook is thus protected by the SCA. However, even if the SCA applied, it protects against disclosure by third parties, not the posting party. The court declined to discuss Juror Number One’s claims of a Fourth and Fifth Amendment violation because they were not developed. Finally, as to juror’s privacy claim, the court found that he did not establish that he had any expectation of privacy in the posts and, in any event, such rights are not absolute and must be balanced with defendants’ rights to a fair trial. Here, misconduct was established and the only remaining question was whether it was prejudicial. As that can be established only by review of the Facebook posts, the trial court is authorized to examine them.