The O.J. Simpson Trial And Social Media – And How Courtrooms Haven’t Been The Same Since
By Thom Fladung for Hennes Communications
O.J. Simpson’s death triggered the expected avalanche of media coverage, from how Nicole Brown Simpson’s killing and the Simpson trial affected domestic violence issues to Simpson’s “complicated legacy” to Khloe Kardashian’s Instagram post reviving speculation about her being Simpson’s daughter.
Much of that coverage, of course, focused on the murder trial that “riveted the nation” and became “an inflection point on race in America,” as the New York Times put it.
The O.J. Simpson trial in 1995 also is an important marker for the marriage of social media and high-profile trials – for better and worse – and how social media has affected all trials, from jury selection to deliberations to litigation communications.
The 24-hour cable news channels were well-established and more than ready when the Simpson trial began. But the Internet was just beginning to be a source for news.
Consider this, from a New York Times story on Feb. 14, 1995: “Hard to believe, but there are some people who cannot get enough information about the O. J. Simpson murder trial from newspapers, magazines, television, books and radio. The Internet and other computer-based on-line information services are emerging as global repositories of trial news and trivia.”
Again, from the Times: “The O. J. mania in cyberspace has also been fueled by Internet’s World Wide Web, which allows advanced Internet users to navigate easily through text files, photographs, sound files and even video clips. One area on the web, as it is called, allows visitors to view, over and over, a video clip of Mr. Simpson pleading not guilty at his arraignment.”
Imagine that.
On America On-line – remember AOL? – with 1.5 million subscribers, an O. J. forum in the “Court TV” section was abuzz with armchair analysts.
Yes, some of this seems quaint now when, at this moment, 1.5 million people may well be watching a cat video. But Times reporter Peter Lewis also was prescient: “Unfortunately for Mr. Simpson, these virtual jurors and judges appear to have already reached their verdicts, posted as collections of on-line comments with subject lines like ‘Guilty as Sin,’ which is next to one called ‘Guilty But Will Walk on a Technicality.’ Far fewer are the subject lines that suggest Mr. Simpson is not guilty, like ‘Planting the Glove’ and ‘Another Setup Theory.”’
With the Simpson trial, we watched the dawn of the revolution of social media and high-profile trials.
A revolution that has continued to play out in courtrooms, resulting in trial results like this:
- Michigan, 2010: A juror in a case of resisting arrest writes on Facebook that it’s “gonna be fun to tell the defendant they’re GUILTY.” The trial wasn’t over. The juror was removed and later fined $250 and ordered to write an essay about the constitutional right to a fair trial.
- Arkansas, 2011: A death row inmate faced a murder trial. Before opening arguments, the judge told the jury: “Just remember: Never discuss this case over your cell phone…and don’t Twitter anybody about this case.” One juror commenced to “Twitter” throughout the trial, including tweeting less than an hour before the jury announced its verdict: “It’s over.” The Arkansas Supreme Court threw out the murder conviction.
Then there are the many examples of jurors using social media to “help” them decide a verdict.
- In a first-degree murder and child abuse case in Colorado in which a woman was accused of killing her four-month-old grandson, a juror researched the prescription drug Paxil, which was being taken by the defendant and shared that research with other jurors during deliberation. The court had denied the jury’s request for a Physician’s Desk Reference about the drug. The Colorado Supreme Court affirmed an appeals court reversal of a conviction for child abuse resulting in death. (People v. Wadle, Colorado, 2003)
- In the “Google Mistrial” in 2009, an eight-week trial ended when a juror reported that a fellow juror told the panel he’d done internet research and found evidence specifically excluded from the trial. Upon questioning by the judge, EIGHT other jurors said they’d also done internet research, contrary to the judge’s instruction.
The Value of Social Media in Jury Selection
There is little debate about the value of social media during jury selection.
In 2012, the New York City Bar said that litigators may use social media for prospective juror research, as long as no communication occurs between the litigator and the prospective juror resulting from such research.
In 2013, jurors being chosen for the trial of George Zimmerman in the death of Trayvon Martin were provided questionnaires that specifically asked whether the potential juror had used Facebook or received or posted information on the site about Martin’s death.
And in 2014, the American Bar Association, through formal opinion 466, made it official, approving the use of social media, such as Facebook, Twitter, LinkedIn and Instagram, to aid attorneys in picking out jurors – unless lawyers are limited by law or court order.
Opinion 466 also encourages judges to advise prospective jurors that attorneys may be researching their social media sites.
There also are limits, of course, as to how far attorneys can go vetting social media sites.
Opinion 466 specifies that attorney requests to “friend” jurors on Facebook or to have another person friend them are improper under the prohibition of ex-parte communications between attorneys and jurors.
The NY City Bar went further, saying that should a juror receive a network-generated notification that an attorney had visited the juror’s website or social media channel that, too, would constitute an improper communication and could violate the New York Rules of Professional Conduct.
Now, you don’t have to go nearly that deep or be an internet forensics expert to find problems with prospective jurors on social media.
#juryduty for years now has been a popular hashtag on social media.
Which leads to interesting posts like this from EvilPenguin: “Well, I have jury duty today. Kind of excited to see what it’s like. ‘Guilty!’ I say.”
Or this. “Also, I might have jury duty soon and that is a horrible idea because I’m spiteful and will vote guilty because I hate people.”
Social Media as Litigation Communications Tool
Social media can be a very helpful if not essential tool for litigation communications.
In 2003, James Haggerty wrote what’s considered by many to be the bible of litigation communications: “In the Court of Public Opinion: Winning Your Case with Public Relations.”
He made one of the early arguments that social media had to be part of the litigation communications strategy: “It is not at all overstatement to say that the world in which most lawyers are practicing has changed immeasurably over the course of the past two decades. We have entered an era of 24-hour news, Web-blogging and 500-channel cable boxes. In this new media-saturated environment, it is becoming increasingly clear that old approaches to media and public opinion just don’t work. As lawyers, we need to adjust – just as surely as we adjusted to online research, computerized document management and the electronic filing of pleadings.”
Of course, when Haggerty wrote this, Facebook had just launched and Twitter was two more years away.
Let’s use the tried-and-true “who, what, when, where, how” approach to talk about best practices for today’s use of social media in litigation communications. But let’s change the order.
Where are the key audiences for this litigation issue getting their information? One of the tools of the social media trade is knowing which channel will work best for you. Is it newsy? Twitter (now X) remains the go-to place for breaking news. Are journalists an important audience? Again, X. Would you like to have your communication shared widely? Use Facebook. According to Pew, 81 percent of all content shared in the U.S. is shared on Facebook.
What are people saying about your issue on social media? Is misinformation circulating? Correct it and link to corroborating, independent information from your social media post. Don’t allow factual errors about your case or issue to live online.
Who are the key social media influencers interested in your case or issue? Look for social media pages or other digital sites that may have been set up to address your issue.
How do you use social media effectively for litigation communications? Be responsive. Social media is built on two-way communication. Work fast. Social media also is built on speed. Remember your audience. You aren’t necessarily responding to a specific social media user. You’re responding to all the people who are reading that post – and waiting to learn what you have to say.
When is the best time to utilize the astounding reach of social media to help your case? Consider the example of Mark O’Mara, the defense attorney in George Zimmerman’s murder trial for the death of Trayvon Martin. The book “Social Media in the Courtroom: A New Era for Criminal Justice?” by Thaddeus A. Hoffmeister described O’Mara’s social media strategy:
“With social media, Zimmerman’s defense team could circumvent traditional media outlets and reach the public directly. This direct connection to the public allowed them to (1) dispute misinformation about the case; (2) discredit and eliminate fraudulent social media profiles of people claiming to be George Zimmerman; (3) reduce speculation about the case and George Zimmerman; (4) raise funds for George Zimmerman’s defense; (5) react to developments in the case in real time; (6) post relevant legal documents.”
It didn’t all go smoothly. As Hoffmeister notes, O’Mara had to shut down his “George Zimmerman Legal Case” Facebook page because the commenters got so nasty.
But O’Mara himself said the use of social media in the case was critical: “We contend that social media in this day and age cannot be ignored. It is now a critical part of presidential politics, it has been part of revolutions in the Middle East, and it is going to be an unavoidable part of high-profile legal cases, just as traditional media has been and continues to be. We feel it would be irresponsible to ignore the robust online conversation, and we feel equally as strong about establishing a professional, responsible and ethical approach to new media.”
A professor who researches juries at the University of Dayton School of Law, Hoffmeister has emerged as one of the top voices on the issues around social media and the law. A second book, “Social Media Law in a Nutshell,” written with Ryan Garcia of Meta, was released in 2022.
Not surprisingly, he’s also a strong advocate of using social media. “As illustrated throughout this book (“Social Media in the Courtroom”), social media is the proverbial ‘game changer’ that has influenced every stage of the criminal justice process,” Hoffmeister wrote. “In addition, and arguably most importantly, social media has shaped the outcomes of numerous cases. Defendants have been both acquitted and convicted based on how well the prosecution or defense employed social media. Thus, in order to stay relevant and be in compliance with the ethical rules, attorneys need to be able to both understand and use social media.”
A legal revolution that began, in many ways, with the O.J. Simpson trial.
“Commentators in the news media have already dubbed the Simpson case ‘The Trial of the Century,’” the New York Times’ Lewis wrote in 1995. “But judging from the role of information technology in these proceedings — not only in the courtroom, with its giant Sony video monitor and laptop computers, but in millions of homes and offices from Toledo to Taiwan — the Simpson case might be more accurately described as the first trial of the digital century.”