Defense lawyer: “Even before jury service, you had an understanding that tweeting could lead to contempt charges?”
Jury foreman: “I just imagined that, from watching ‘Law & Order,’ I guess.”
— From the Miami Herald online,
June 13, 2012, reporting on a case in which a convicted armed robber claimed the jury foreman had tainted his trial via Twitter. The man’s conviction was upheld.
You don’t have to watch “Law & Order” to recognize that social media is being increasingly used in court reporting.
Last year in St. John’s, during the trial of Steven Neville on murder and attempted murder charges, reporters often turned to Twitter to send out real-time play-by-plays of what was happening inside the courtroom.
On Oct. 29, for example, Telegram court reporter Rosie Gillingham tweeted seven times from the Neville trial, with interesting tidbits such as this:
Weeks before Doug Flynn was killed, accused murderer Steven Neville called RNC to report group were after him with knives, bats.
It was an apt method of communication in a trial that saw much of its testimony based on text messaging.
And it’s an effective way to get information out quickly in a competitive media market where breaking the news first means you have a better chance of attracting a larger following.
Tweets from court also have the kind of immediacy that makes readers feel like they’re in the courtroom themselves, watching the drama unfold.
Courts across Canada are well aware of the use and influence of social media in court coverage, and have been grappling with whether to embrace the practice or forbid it.
In October, the Canadian Centre for Court Technology issued proposed “Guidelines Regarding the Use of Electronic Communication Devices in Court Proceedings,” offering them up as a starting point for discussion across the country.
The guidelines promote openness and accountability, and would permit the use of electronic communication devices in courtrooms by members of the public and the media (with certain caveats). They would also allow reporters to audio record proceedings instead of relying on handwritten notes, but the recordings could not be used for broadcast purposes.
But it seems unlikely the guidelines will be universally accepted.
Instead, most provinces are making their own rules, with varying degrees of leniency.
This province’s courts have long been at the forefront when it comes to promoting an open court system, and our top judges’ views on the use of social media in the courtroom reflect that commitment to transparency.
“Without publicity there can be no justice,” Chief Judge Mark Pike, head of provincial court, wrote to The Telegram via email.
“If new technologies can improve publicity and help achieve the open court principles, they should be adopted.”
Chief Justice David B. Orsborn, who heads the Supreme Court of Newfoundland and Labrador Trial Division, agrees.
He says trial division judges have allowed the use of social media in their courtrooms without incident, to the best of his knowledge.
Same goes for Chief Justice Derek Green of the Supreme Court of Newfoundland and Labrador Court of Appeal.
“As far as the Court of Appeal is concerned, this has never been an issue for us so far,” he said. “I’m not even sure if news reporters who attend our court are tweeting or texting. It’s not really a concern for us. Our only concern would be if it was distracting, or disrupted court proceedings.”
Green pointed out that such activity poses lesser risk in the Court of Appeal, as there are no witnesses who could be influenced and no jury to be tainted, unlike in the lower courts.
But all three judges agreed a policy makes sense and they acknowledge that the use of social media to convey what’s happening in court could prove detrimental if it was used imprudently.
In the case of the Neville trial, for example, a member of the public in the courtroom often used Twitter to criticize media coverage as it was unfolding.
There was no harm done in that situation, as savvy media consumers could judge for themselves if news sources were credible.
But social media could be used to call the justice system into disrepute and could potentially jeopardize proceedings.
As Chief Justice Orsborn explained:
“Live simultaneous texting and twittering poses a potential distraction for trial participants, and leaked information, either accurately or inaccurately reported, has the potential to influence or taint witnesses waiting to give evidence, jurors or potential jurors.
“For example, if in a jury trial the judge determines that certain evidence should be excluded, the fairness of the trial could be significantly compromised if jurors were to become aware of that evidence. And since jury deliberations are secret and jurors are not allowed to discuss their deliberations after the trial, there is no way of knowing whether jurors have been improperly influenced by such information.”
On Monday, Ontario courtrooms adopted new rules governing the use of social media, which will take affect next month.
Those rules ban the use of social media by members of the public in the courtroom, but allow its use by journalists.
The greater leeway afforded to members of the public here is to be applauded, as is the fact that we have one of the most open court systems in the country.
Let’s just keep our fingers crossed that in this era where anyone with access to the Internet can “publish” live court coverage, people are respectful of the prohibitions that are in place when it comes to what can and cannot be reported.
Otherwise, our open and transparent court system will have no choice but to become more restrictive. And that would be to the detriment of us all.
Pam Frampton is a columnist and
The Telegram’s associate managing editor. She can be reached by email at