Len Niehoff is Professor from Practice at the University of Michigan Law School, where he teaches courses in civil procedure, ethics, evidence, and media law, and seminars in appellate advocacy and law & theology. He is also Of Counsel to the Honigman law firm. The opinions expressed here are his own.

Thursday, December 16, 2010

Judges All A-Twitter

Earlier this year, the Communications Lawyer published an article ("Of Tweets and Trials," 27 Communications Lawyer 3, September 2010) where I pointed out that the phenomenon of social media is forcing judges to rethink the measures they take to ensure that the trials over which they preside are conducted in a fair and orderly manner.

In that article, I focused on the impact of social media on the "gag orders" that judges enter against parties, witnesses, and attorneys and on the instructions that judges give to jurors.

My friend Dave Farrell brought to my attention an interesting piece from yesterday's online edition of the Guardian that can be found here. The article praises a British judge's decision to allow tweeting from the courtroom during the Julian Assange extradition hearing. It argues that there is no principled basis on which to distinguish real-time tweeting in the courtroom from the journalist's long-recognized right to take notes on what happens in open court, walk into the hallway, and phone the story in.

The argument has a lot of appeal, although questions obviously remain. Does the character limitation of tweets work against their accuracy? Is the real-time nature of the medium inconsitent with the kind of reflection that provides depth and context to a report? Should judges allow journalists to tweet in their courtrooms, but not members of the general public? If so, then which category do bloggers fall into?

Judges throughout the United States who find themselves presiding over high-profile trials are looking for answers. Are they finding any?

Stay tuned.

Friday, December 10, 2010

What the Bird Heard

Here's an intriguing puzzle for students of evidence.

A 60-year-old South Carolina woman has been charged with abusing and neglecting her 98-year-old mother. The evidence against her includes, of all things, statements made by a parrot. Police report that the parrot was mimicking the phrase "Help me! Help me!" and then laughing. They believe the parrot is repeating the cries for help from the mother and the mocking laughter of the daughter. The ABA Journal report on the story can be found here.

There are several obvious obstacles to admitting the bird's statements into evidence. Surely one of the most significant is authentication. How do we know whose statements they really are? How do we know when they were made? How do we know that the parrot is accurately repeating what it heard?

Life, we learn once again, is strange. Even stranger than the imaginations of law professors who have to write Evidence exams.

Thursday, December 2, 2010

Dilemmas of Transparency

This has gone unnoticed, but two important stories that have emerged in the last few days raise related issues.

The first story concerns the exploits of Julian Assange and WikiLeaks in releasing confidential State Deparment communications Some of the material is interesting; some seems gossipy and petty; much of it appears unlikely to do any harm. But Assange's reckless release of so much sensitive information obviously raises legitimate concerns about putting innocent people at risk and further destabilizing already unstable situations.

Common sense tells us that some parts of our government cannot be fully transparent if they are to work properly.

The second story concerns the failure of the State of California to bring its prisons up to constitutional standards, despite two decades of operating under court orders directing it to do so. At a recent hearing on the issue, photographs of California prison conditions left United States Supreme Court Justice Stephen Breyer shaking his head in shock and dismay. Of course, our prisons got into these horrible straits in the first place because they were largely operated outside of public scrutiny--a situation that the states and federal government perpetuate by placing absurd restrictions on media access to those behind bars.

Common sense also tells us that some parts of our government must be highly transparent if they are to work properly--indeed, if they are to pass even the most basic expectations of human decency.