Hulk Hogan v Gawker trial takes a very “Florida” turn

For the past week in Florida casual discussion of penis size and apparel has decorated court transcripts, promising ample entertainment for law students of the future. In case you missed it, Hulk Hogan is suing Gawker over the posting of a sex tape, filmed without his consent. Gawker argues that freedom of the press should shield them from liability, while Hogan contends that his privacy concerns outweigh any First Amendment interests. On Friday of last week, the jury agreed with Hogan and awarded him $115 million in damages, and an additional $25 million in punitive damages.

Interestingly, on Monday of last week, the jury handed their questions to the Judge for Emma Carmichael, the Editor-in-Chief of Jezebel, and Gawker’s managing Editor at the time of the airing of the Hogan’s sex tape. Without much explanation, one of the questions the jury asked asked was whether or not she ever had an “intimate relationship” with either of her bosses, Nick Denton or AJ Daulerio (also named as defendants in the trial). Her response was an emphatic “no,” but social media commentators and journalists immediately pounced on the sexist nature of the question and how it appears inappropriate for a courtroom.

It is first important to first state that THIS IS NOT NORMAL. Florida is one of only a handful of states that allow jurors to submit questions for witnesses. Attorneys for the plaintiff(s) and defendant(s) are permitted to make objections if they believe the question is irrelevant to the legal questions at the core of the case, but rarely do for fear of antagonizing the jury. If the jury thought a lawyer for one side inhibited the jury’s line of questioning, the jury could draw undesirable (although potentially unwarranted) conclusions surrounding the question or the attorney’s motivations . Likewise, if the judge were to strike down certain questions as inadmissible or otherwise objectionable, they could be seen as “picking sides” by the jury, who could compensate or react in some way when rendering their verdict.

That being said, this specific type of questioning is likely inadmissible, as it is entirely irrelevant to the case. In spite of this, it is not likely to be objected to, for the above reasons. In many ways this undermines the rules of evidentiary procedure and allows the jury to potentially derail either sides’ strategy, in an arena where they are typically considered to play a passive role in the trial.

The practice of allowing jurors to ask questions is lauded by some critics as a way to keep the jury interested in the trial, or it can reveal bias or a misunderstanding of certain facts, which the judge can then attempt to correct before the court rests. On their face, benefits are questionable and could likely be accomplished by other means.

Let’s not forget that this trial takes place in Florida, the state that brought us bath salts and taught me that a .413 blood alcohol content does not necessarily equal death.

Like what you read? Give Jessica Meiselman a round of applause.

From a quick cheer to a standing ovation, clap to show how much you enjoyed this story.