Supreme Court Agrees to Hear Gay Marriage Cases

The Supreme Court announced today that it will hear two critical cases involving gay marriage.  The first involved a challenge the Defense of Marriage Act[1] (DOMA).  Passed in 1996, DOMA denies federal recognition of gay couples married in states legalizing gay marriage.  As a result of DOMA, Congress has thus far been able to prevent legally married gay Americans from receiving the same federal benefits heterosexual married couples receive – a violation of the 14th Amendment’s Equal Protection Clause. The Appeals Courts in both Massachusetts and New York have struck down the law as unconstitutional.

The second case involves a challenge to California’s notorious 2008 Proposition 8 law, which was passed after that state’s Supreme Court ruled homosexual couples defined marriage as between a man and a woman. Although it passed as a ballot measure, the constitutional amendment was struck down by the 9th Circuit Court of Appeals.

Gay marriage is legal, or will be soon, in: Connecticut, District of Columbia, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont, Washington.  Although national support for gay marriage has steadily risen over the years, thirty-one states have amended their state’s constitution to ban gay marriage.

The rights of millions of Americans are at stake in this case.  A broadly stated decision in favor of gay marriage could overturn every state constitutional provision and law banning same-sex marriages.  A ruling in support of Proposition 8 and/or DOMA, will be seen as a victory for states’ rights.  However the Court rules, this promises to be the most significant ruling the Court has had since it upheld the Affordable Care Act earlier this year.

Proposed Model Jury Instructions Address The Use of Social Media by Juries


It was simply a matter of time before the courts caught up with the rap. Inappropriate use of social media by jurors, whether to disseminate or gather trial information, has been a recent source of controversy within the legal community.

A juror communicating with others about a case makes that juror susceptible to outside opinions and influence, not to mention potentially compromising key elements of the case. Furthermore, a juror may obtain inaccurate information which taints their judgment. The concept of “due process,” which is central to our judicial system, only works effectively after judges and attorneys have had a chance to thoroughly litigate the evidence offered before presenting it to a jury, and that juror limits their opinion to the evidence presented in court.

The Federal Judicial Conference Committee recently revised the Model Jury Instructions to expand and elaborate on the ban of a juror’s use of social media to communicate about a case while that case is still ongoing.

“You may not communicate with anyone about the case on your cell phone, through email, Blackberry, iPhone, text messaging, or on Twitter, through any blog or website, including Facebook, Google+, My Space, LinkedIn, or YouTube. You may not use any similar technology of social media, even if I have not specifically mentioned it here.”

The majority of judges follow the model jury instructions. Those that do not directly utilize the model jury instructions still clearly prohibit the use of social media in their instructions.


Jurors are instructed that they must decide a case based solely on the evidence presented in the courtroom. There are strict prohibitions against communicating with others about the case prior to deliberations or seeking information outside of the courtroom. The emergence of social media websites and the wide-spread use of smart phones have made it easier for jurors to communicate with non-jurors about a case.

Despite the ease of information sharing, thus far, it does not appear that a juror’s use of social media to communicate information about a case is a common occurrence. Based on a sample of 508 judges, only 30 (or 6%) reported an instance of a juror using social media inappropriately[1]. The types of communication reported have included a juror “friending” or attempting to “friend” a participant in the case; or a juror communicating directly with a participant in the case. Judges’ responses have varied depending on the circumstances, mainly, the extent of the communication. A small percentage have declared mistrials, most have removed the juror or warned the juror. In one instance, a juror was held in contempt of court; in another, a juror was fined by the court.

It is important to note the difficulty in monitoring a juror’s actions. Over 45% of judges sampled indicated that they have no way of knowing the success of their instructions.[2] The Model Jury Instructions rely in-part on other jurors to report inappropriate communication of their fellow juror. This presents practical difficulties as a juror’s social media activity may be private and an attorney, judge or fellow juror will likely be outside of their social network.


Although the free flow of information raises the ease in which a juror may inappropriately communicate with others about a case, thus far, it has not raised the likelihood of such an occurrence. For the most part, jurors still abide by jury instructions. Nevertheless, judges can further safeguard a defendant’s right to a fair trial by taking preventive actions, such as: following the model jury instructions; explaining to jurors, in plain language, the reasons for the social media ban; reminding jurors of the social media ban both before the trial and before the deliberations; alerting the jury about the consequences, both personally and for the case, for not abiding by the ban; and, if necessary, confiscating electronic devices during deliberations and/or before the start of each day of trial.

Moreover, if a judge learns or even suspects of inappropriate communications via social media by one of the jurors, the judge must immediately investigate the communication and ascertain the damage to ensure a fair trail. Finally, attorneys must also be aware of the social media activity of jurors to a reasonable extent.

[1] “Juror’s Use of Social Media During Trials and Deliberations: A Report to the Judicial Conference Committee on Court Administration and Case Management.” Meghan Dunn, Federal Judicial Center. November 22, 2011.$file/dunnjuror.pdf


US Supreme Court: Questioning of a Prison Inmate Does Not, By Itself, Trigger Miranda Warnings

Taking a prisoner aside for questioning does not necessarily convert a noncustodial situation to one in which Miranda applies. Howes v. Fields, 2012 WL 538280 (S. Ct. 2012).

Summary: The US Supreme Court reversed a Sixth Circuit decision to grant an inmate habeas corpus relief from his convictions for third-degree criminal sexual conduct. The inmate had argued that while he was in prison he was taken away for an interrogation regarding his criminal activities conducted before he was in prison, but he did not receive any Miranda warnings. The Supreme Court rejected the Sixth Circuit’s rationale that Miranda rights categorically apply when an inmate is removed from the general prison populace to be questioned on activities that occurred outside of prison that is unrelated to his current incarceration. Turning to the facts and circumstances surrounding the interrogation, the Supreme Court majority, led by Justice Alito, held that the inmate’s interrogation was not custodial in nature.

Discussion: Randall Lee Fields, a Michigan state prisoner, was escorted from his prison cell by a corrections officer to a conference room where he was questioned by two sheriff’s deputies about criminal activity he had allegedly engaged in before coming to prison, specifically that he had engaged in sexual conduct with a twelve year old boy. At no time was Fields given Miranda warnings or advised that he did not have to speak with the deputies.

As relevant here: Fields was questioned for between five and seven hours; Fields was told more than once that he was free to leave and return to his cell; the deputies were armed, but Fields remained free of restraints; the conference room door was sometimes open and sometimes shut; several times during the interview Fields stated that he no longer wanted to talk to the deputies, but he did not ask to go back to his cell; and after Fields confessed and the interview concluded, he had to wait an additional 20 minutes for an escort and returned to his cell well after the hour when he generally retired.

Implications: Neither the Supreme Court nor the SJC enforce the Sixth Circuit’s categorical rule that a prisoner is automatically in custody for the purposes of Miranda application. Instead, for both courts, in determining whether a person is in custody for purposes of triggering Miranda, the initial step is to ascertain whether, in light of the objective circumstances of the interrogation, a reasonable person would have felt he or she was not at liberty to terminate the interrogation and leave. This so-called freedom-of-movement test is a necessary but not a sufficient condition for determining whether a person is in custody. Counsels for criminal defendants facing similar situation should not only satisfy the freedom-of-movement test, but also look to facts of other cases to establish a distinction between their case and that of Fields.