If you have followed the second degree murder trial of George Zimmerman for killing Trayvon Martin, you may have seen the two major technological blunders made by the prosecution. These two incidents involving Twitter and Skype, are prime examples of why the ABA was correct in revising the Model Rules of Professional Conduct to require that attorneys keep current on new technology.
In the first incident, the prosecution attempted to show that it’s own witness Jenna Lauer was biased in favor of Zimmerman by trying to get Lauer to admit on the stand that she “followed” Zimmerman’s brother, Robert Zimmerman, Jr., on Twitter. [For those not familiar with Twitter, if you follow someone, you receive their messages posted on Twitter]. Lauer placed the 911 call on which screams for help could be heard. In response to the prosecutor’s questioning, Lauer claimed she did not understand how Twitter works and denied following Zimmerman– which it appears now was not true. See http://blog.x1discovery.com/2013/06/28/zimmerman-trial-counsel-botches-social-media-evidence-on-national-tv/
Viewing the prosecutor’s examination, the one thing that was abundantly clear was neither witness, nor the prosecutor had a good understanding of how Twitter works. Perhaps the witness can be excused for this ignorance, however, the prosecutor cannot. The result was this line of questioning, which had the potential to show real bias and call into question witness credibility, had to be abandoned by the prosecutor because he had not done his homework and could not conduct an effective cross-examination on a social media technology he did not understand.
The second prosecution technological fiasco was the attempt to present a witness via Skype. Skype is a video teleconference service. As reported by Vishal Persaud with Washington NBC affiliate channel 4:
“Scott Pleasants, a criminal justice professor at Seminole State College had been called to testify about Zimmerman taking an online criminal justice course in 2011. About one minute into Pleasants’ testimony, delivered from Colorado, an onslaught of incoming Skype calls began to pop-up on the television screen in the courtroom, which interfered with the testimony.
Apparently, Pleasants’ Skype username was visible on the television screen in the Sanford, Fla., courtroom, as well as to everyone watching the trial across the country, prompting the slew of prank Skype phone calls accompanied by the service’s trademark “ping” sounds.
Towards the end of the prosecutor’s examination, the calls had become so numerous that the judge had to intervene and order Pleasants to end the Skype call.” http://www.nbcwashington.com/news/national-international/Skype-George-Zimmerman-Murder-Trial-Trayvon-Martin-Juror-Jury-214187041.html
I have written about Skype for the presentation of witnesses and the problem of pop-ups. Had someone in the courtroom been familiar with Skype, the program settings could have been adjusted to prevent access by the pranksters.
See Below [limit IM messages to contacts]:
Because the prosecutor and/or his staff did not know how to properly use Skype in this situation, the impact of this witness’ testimony was diminished. The lesson— know your presentation technology and try it out before using it in a nationally televised murder trial.
Recognizing the importance of attorneys staying technologically current, in August of 2012, the ABA’s House of Delegates voted to amend the comment to Model Rule of Professional Conduct, Rule 1.1. The Rule itself remains unchanged and states: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”
The revised comments to the rule, which are to be used to interpret and provide guidance for construction of the Rule, add the following italicized language: “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.” While the ABA Model Rules are not themselves binding on lawyers, they serve as a model for ethics rules in most jurisdictions.
So the lesson here for lawyers young and not so young– take the time to familiarize yourself with the lastest technology– especially before attempting to use it at a nationally televised trial.