Curious Jurors Google Up A Mistrial
March 24th, 2009 Posted in From the Team, Legal Video, Trial ConsultantsFrom Connecticut Law Tribune - March 23rd 2009
By PAUL SUSSMAN
As we all know, the Internet has made research ridiculously easy. A world of information is as close as the nearest laptop, iPhone or BlackBerry. Most of the time, that’s a good thing. But sometimes – say, during a trial, in a courtroom, jury room or courthouse cafeteria – it can cause problems.
Last week, the Web was buzzing about a New York Times story that focused, in part, on a recent federal trial in Florida in which the defendant was charged with illegally selling prescription drugs through an Internet pharmacy.
After eight weeks of arguments, the jury was deliberating. Then one juror contacted the judge to say that another had admitted doing research on the case on the Internet, directly violating the judges’ time-honored instructions about not reading about the case in newspapers, watching television reports, etc.
Upon questioning by U.S. District Judge William Zloch, the juror confessed to the outside research. But that wasn’t the end of it. The judge then questioned the remaining jurors. Eight more acknowledged Googling up information on the case, or scanning Wikipedia or other online sources.
The judge declared a mistrial. “We were stunned,” defense lawyer Peter Raben told the New York Times. “It’s the first time modern technology struck us in that fashion, and it hit us right over the head.”
The Times reported on at least two other cases, one in Arkansas and one in Pennsylvania, in which ill-timed Twitter tweets and Facebook postings by jurors have prompted calls for mistrials.
‘Dream World’
The newspaper story, and the seeming trend toward trials derailed by technological forces, drew swift and strong reaction. But the consensus is not what you might have expected.
Instead of taking jurors to task for ignoring instructions, Web sites and bloggers that focus on technology, the law and other topics chided the legal system for being slow to deal with the modern world.
“The fault isn’t with the technology, or with the jurors,” scolded bMighty.com, which offers technology advice to businesses. “It’s with an arrogant, controlling legal system living in a dream world that ignores fundamental changes in the way people access information…
“Technology has altered the processes and power structures in business, in culture, in communities, in socializing, and in just about every area of life you can think of. But the courts are still living in 16th century England, which is starting to cause some big problems…”
The site TUAW.com (short for The Unofficial Apple Web Site) wrote: “Many judges didn’t give a thought about jurors using their phones to do research until recently, but our do-it-all phones are likely going to force a complete rewriting of the rules.”
The InfoWorld Web site reported, tongue in cheek, that judges might soon give the following instructions: “Ladies and gentlemen of the jury, you are hereby instructed to ignore all technological innovations of the past 25 years. In fact, ignore everything newer than the rotary phone. No, wait, make that the telegraph. Or the printing press…”
Lest you think that only techies and geeks judged the courts to be out of touch, posters on the American Bar Association Web site – whom one would presume to be lawyers – were just as snippy. One suggested that the judge in the Florida case was either “naïve or woefully behind the times.”
Another ABA poster opined that: “Every juror is surfing the Web on his BlackBerry to find info on the case even when they are in deliberation. You have to know that going in and make sure you win the PR battle in the press as well as your case in the courtroom.”
Some observers suggested that, in an era when avoiding jury service has turned into a middle-class art form, it’s almost refreshing to learn there are still some jurors who are smart enough and motivated enough to use technology in an attempt to seek the truth.
“A jury of my peers understands the Internet and probably has a pretty powerful phone in his or her pocket,” wrote the author of the InfoWorld commentary. “That’s whom I’d want to see in the jury box. And if they Google me and find out all the nasty things I’ve written, well, I’m screwed, I guess.”
Looking For Answers
So what should courts do about the phenomenon? One of the ABA posters suggested that “we probably ought to do away with the rule [banning jurors from doing their own research] because no one follows it anyway.” That sort of sentiment frightens legal scholars, who say that the adversarial system depends on both sides being able to scrutinize and challenge all facts that go before the jury.
Some say the obvious answer is to take smart phones, BlackBerrys and other such devices away from jurors when they enter the courthouse. Others note, however, that this does nothing to stop non-sequestered jurors from doing research on their own time.
Another recommendation is that judges specifically mention the Internet when they warn jurors to not read about, or do any research on, the case they are hearing. But even respected legal minds suspect that admonition will fall on deaf ears.
“It’s really impossible to control it,” Douglas L. Keene, president of the American Society of Trial Consultants, told the New York Times. “There are people who feel they can’t serve justice if they don’t find the answers to certain questions.”
One thing everyone agrees on is that many more cases will be affected by curious jurors, and that serious discussion is needed to figure out what to do about it. “How can you learn more about this issue?” quipped TUAW.com. “Google it on your iPhone, of course.”
