Category Archives: Case Review

Social Media in the NCSC Newsletter

Connected, the newsletter of the National Center for State Courts, lastest issue has articles relating to Social Media in the court. Always a topic of interest, we have shared the articles below.


State Court PIO Attacked over Social Media Usage

The Denver Post reported on March 21, 2014 that defense attorneys for Aurora theatre shooter, James Holmes, filed a motion to compel with the court. The motion alleges that Rob McCallum, the public information officer for the Colorado judicial branch, violated or will violate the trial judge’s prior gag order in the case and “undermined Mr. Holmes’ right to a fair trial by an impartial jury” with the case related postings on his Twitter page. The 18-page motion is available online and includes numerous screen shots of the postings in question.

It also cites the gag order which precludes court personnel from disclosing information about the case that is not already public. Mr. McCallum allegedly violated this order by engaging in a series of “jovial tweets” with a prosecutor. Additionally, the motion states, Mr. McCallum “provides information and communicates his personal opinion about other high profile cases using his Twitter account.” He also allegedly has promoted law enforcement agencies via Twitter. This newspaper article and the motion graphically portray complex issues in the social media age about how to balance First Amendment rights with the defendant’s rights so their cases are decided by fair and impartial juries.


Admissibility of Social Media Postings into Evidence

The Supreme Court of Delaware issued an opinion in Tiffany Parker v. State in February of 2014. Ms. Parker was convicted by a jury of “second degree assault.” She alleged on appeal that the trial court erred by admitting statements into evidence from her Facebook page. The defendant argued that Delaware should follow the Maryland approach. Under Maryland caselaw, social media evidence may only be authenticated through the “testimony of the creator, documentation of the internet history or hard drive of the purported creator’s computer, or information obtained directly from the social networking site.” The state argued that the court should follow the Texas approach to the admission of social media evidence. Under the Texas approach, the proponent of social media evidence must only prove to the trial judge that a “jury could reasonably find that the proffered evidence was authentic.”

The Supreme Court of Delaware adopted the approach in Texas used to authenticate and admit social media evidence. In doing so, they indicated that the mechanisms that were currently in place in the Delaware Rules of Evidence were sufficient to ensure that social media postings offered as evidence have not been falsified. This is an interesting case because it describes very clearly two very different approaches for resolving this issue.


Judges’ Use of Social Media

John G. Browning, a Dallas, Texas attorney published an article in the current issue of the Miami Law Review titled, “Why Can’t We Be Friends? Judges’ Use of Social Media.” One of the introductory paragraphs describes the article:

This article examines both the positive aspects of judges participating in social media as well as the ethical pitfalls. It will look at not only individual instances of judges’ misconduct in their use of social media, but also the varying treatment seen in the ethics opinions and judicial rulings from around the country that have addressed the issue. These decisions reveal that attitudes toward judges being active on social media vary among the states that have dealt with this issue. These decisions, and the attitudes they reflect, shed light on how we view judges and their role in society. Are judges to be viewed as isolated from society? Are they to be viewed as philosopher-priests toiling away in our jurisprudential temples? Should they be regarded as fully connected to society and all of its foibles, with their work reflecting accessibility to the citizens they serve?


Survey of 583 Actual Jurors on Social Media

U.S. District Judge Amy St. Eve (N.D. Ill), Judge Charles P. Burns of the Circuit Court of Cook County, Illinois and Michael A. Zuckerman, Esq. published a law review article in the Duke Law and Technology Review titled, “More From the #Jury Box: The Latest on Juries and Social Media,” 12 Duke Law & Technology Review 64-91 (2014). The authors surveyed 583 actual jurors in both federal and state courts to explore their attitudes towards social media. The survey and the law review article are very unique. They give readers insights into this issue as well as providing support for the view that a well written jury instruction may be th e best counter measure to manage this problem.


Click here to view the original posting.


ssc – jm

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“Court Watchers”

The Arizona Supreme Court has launched a new website  posting cases currently before the Court.

Agendas and Cases before the Court

On a similar note, Maricopa County Superior Court Media Relations Department  has a High Profile List that can be searched by name, or simply click a time frame and search button. The high profile case(s) that will be heard within the time period or by the name entered will be listed.

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AZ Supreme Court & COA Div. 1 Opinions






Robert M. Brutinel, Author; Rebecca White Berch, Concur, Scott Bales, Concur, John Pelander, Concur, Ann A. Scott Timmer, Concur




John Pelander, Author; Rebecca White Berch, Concur, Scott Bales, Concur, Robert M. Brutinel, Concur, Ann A. Scott Timmer, Concur




Robert M. Brutinel, Author; Rebecca White Berch, Concur, Scott Bales, Concur, John Pelander, Concur, Ann A. Scott Timmer, Concur




John Pelander, Author; Rebecca White Berch, Concur, Scott Bales, Concur, Robert M. Brutinel, Concur, Ann A. Scott Timmer, Concur




Scott Bales, Author; Rebecca White Berch, Concur;  John Pelander, Concur; Robert M. Brutinel, Concur; Ann A. Scott Timmer, Concur; John Pelander, Special Concurrence





STATE v. BUOT – 1 CA-CR 12-0198

Diane M Johnsen, Author; Patricia K Norris, Concur; Jon W Thompson, Concur

 Whether, under Arizona law, when a defendant is charged with second-degree murder, the superior court must admit evidence of the defendant’s character trait of impulsivity to show that he did not act knowingly or recklessly in causing the death of another.



Diane M Johnsen, Author; Samuel A Thumma, Concur; Michael J Brown, Concur

Whether Arizona Rule of Civil Procedure (“Rule”) 54(g)(1), which states that a request for attorney’s fees “shall be made in the pleadings,” precludes an award of fees to a defendant who does not file an answer but instead successfully moves to dismiss a complaint for lack of personal jurisdiction pursuant to Rule 12(b).

 Whether a defendant waives personal jurisdiction by filing a request for attorney’s fees with a Rule 12(b) motion to dismiss for lack of personal jurisdiction.

 Whether a defendant who successfully moves to dismiss for lack of personal jurisdiction wait to request attorney’s fees until after the court has granted the motion.


RSP v. FIVE STAR – 1 CA-CV 12-0545

Diane M Johnsen, Author; Samuel A Thumma, Concur; Michael J Brown, Concur

 Whether the Arizona Prompt Payment Act, Arizona Revised Statutes §§ 32-1129, et seq., applies to contracts for the provision of architectural services.


STATE v. KENDRICK – 1 CA-CR 11-0849

Patricia K Norris, Author; Andrew W Gould, Concur; Randall M Howe, Concur

Whether a probationer’s unauthorized removal of an electronic monitoring device, required as a condition of probation, constitute escape in violation in of A.R.S.  § 13-2503(A)(2)? 


NOLD v. NOLD – 1 CA-CV 12-0214

Patricia A Orozco, Author; Peter B Swann, Concur; Paul F Eckstein, Judge Pro Tempore, Concur

 1.   Whether the family court erred in failing to list the custody factors in Arizona Revised Statute 25-403?

 2.    Whether Father nevertheless waived his objections to the sufficiency of the statutory custody findings by failing to raise this issue in his motion for new trial.

 3.   Whether Father waived his claim for a community property interest in the retirement accounts and life insurance policy by failing to list them in his pre-trial statement.

 4.   Whether the family court erred in finding Father failed to preserve his claim in the retirement accounts and life insurance policy when the retirement accounts were raised in Mother’s pre-trial statement and the family court heard evidence regarding the retirement accounts and life insurance policy.


STATE v. BAGGETT – 1 CA-CR 12-0480

Andrew W Gould, Author; Margaret H Downie, Concur; Patricia A Orozco, Concur

 Whether Arizona Revised Statute Section 28-817(A) applies only to bicycles traveling on the roadway at night or whether it also applies to bicycles traveling on a sidewalk at night.


STATE v. FRANKLIN – 1 CA-CR 12-0157

Patricia A Orozco, Author; Peter B Swann, Concur; Robert C Houser, Jr, Judge Pro Tempore

 Whether the trial court erred in admitting a victim’s hearsay statements pursuant Arizona Rule of Evidence 804(b)(6), the Forfeiture by Wrongdoing hearsay exception?


STATE v. REYES –  1 CA-CR 12-0163

Maurice Portley, Author; Samuel A Thumma, Concur; Donn Kessler, Concur

 Does A.R.S. § 13-610 allow the superior court to order a convicted felon to pay the cost of DNA testing?


IN RE MH 2012-002480 – 1 CA-MH 12-0077

Andrew W Gould, Author; Patricia K Norris, Concur; Randall M Howe, Concur

 Whether two witnesses who had no physical, in-person contact with the Appellant for several months prior to her involuntary commitment hearing qualify as “acquaintance witnesses” pursuant to Arizona Revised Statute Section 36-539(B).


REECK v. MENDOZA – 1 CA-CV 12-0158

Robert Carter Olson, Judge Pro Tempore, Author; Patricia A Orozco, Concur; Peter B Swann, Concur

 Whether this court has jurisdiction over an appeal when the family court has granted a party attorney fees, but that party has failed to file and serve the required application for attorney fees?


ALPHA v. DARTT, et al. – 1 CA-CV 12-0361

Margaret H Downie, Author; Andrew W Gould, Concur; Patricia A Orozco, Concur

 Whether towing companies have a constitutionally protected property interest in remaining on a police department’s towing rotation list if the underlying administrative regulations creating the list have not been established through legislative action?


CALVIN B. v. BRITTANY B., G.B. –  1 CA-JV 12-0197

Diane M Johnsen, Author; Peter B Swann, Concur, Randall M Howe, Concur

 Whether the court may grant a private petition to sever a parent’s rights brought by the other parent, when the petitioning parent has persistently interfered with the subject parent’s opportunity to interact with their child.



Philip Hall, Author; Jon W Thompson, Concur; Kent E Cattani, Concur

 Does a party prospectively waive anti-deficiency protections provided by Arizona Revised Statutes section 33-814(G)?


STATE v. WILLIAMS – 1 CA-CR 11-0813

Michael J Brown, Author; Andrew W Gould, Concur; Donn Kessler, Specially Concurring


When a jury finds a defendant guilty of felony murder and second-degree murder arising from the death of a single victim, should the trial court vacate the second-degree murder conviction prior to sentencing?



Donn Kessler, Author; Michael J Brown, Concur; Andrew W Gould, Dissent

 Does an offer for purposes of Arizona Revised Statutes section 20-259.01 require that premium prices for uninsured and underinsured motorist insurance coverage be presented to the potential insured?


CABLE ONE v. ADOR, et al – CA-TX 12-0006

Patricia K Norris, Author; Andrew W Gould, Concur; Randall M Howe, Concur

 Whether a cable company that uses its cable broadband network and Voice over Internet Protocol service to provide its customers with local and long-distance telephone service a “telecommunications company” is subject to central assessment by the Arizona Department of Revenue?


STATE v. ARVALLO – 1 CA-CR 11-0193

Peter B Swann, Author; Patricia A Orozco, Concur; Thomas C Kleinschmidt, Judge Pro Tempore, Concur

 When testimony concerning violent behavior prompts a juror to express concerns over his or her anonymity and safety, and the juror expresses a desire to shield such concerns from the defendant, is a mistrial required?


HAMM v. RYAN – 1 CA-CV 12-0130

Michael J Brown, Author; Samuel A Thumma, Concur; Diane M Johnsen, Concur

 1.  Whether Arizona Revised Statutes section 41-1604, which authorizes a $25 charge for conducting a background check on any person seeking to visit a prison inmate, is an unconstitutional special law in violation of Article 4, Part 2, Sections 19(9) and (20) of the Arizona Constitution.

 2.  Whether, if construed as a fee, the $25 charge is unconstitutional.

 3.  Whether the $25 charge is an unconstitutional tax.

Constitutionality Decision

Holding Arizona Revised Statutes § 41-1604(B)(3) (imposing a $25 fee for conducting background checks on any person seeking to visit a prison inmate) does not violate  Article 2, Part 2, Section 19 of the Arizona Constitution, which prohibits enactment of special laws.



John C Gemmill, Author; Jon W Thompson, Concur; Donn Kessler, Concur

 Does the one-year statute of limitations of Arizona Revised Statutes Section 12-821 run against a plaintiff in possession of property who brings a quiet title action to remove a cloud on the title to his property?


STATE v. ANTHONY, et al. – 1 CA-CV 11-0796

Donn Kessler, Author; John C Gemmill, Concur; Jon W Thompson, Concur

 Whether, in a forfeiture case, Arizona Revised Statutes section 13-4311(G) provides a ten-day grace period for the defendants or claimants to file an answer?


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