Below The Beltway

An interesting article in the New York Times details the problems that Judges are confronting now that jury trials have entered the information age:

Last week, a juror in a big federal drug trial in Florida admitted to the judge that he had been doing research on the case on the Internet, directly violating the judge’s instructions and centuries of legal rules. But when the judge questioned the rest of the jury, he got an even bigger shock.

Eight other jurors had been doing the same thing. The federal judge, William J. Zloch, had no choice but to declare a mistrial, a waste of eight weeks of work by federal prosecutors and defense lawyers.

“We were stunned,” said a defense lawyer, Peter Raben, who was told by the jury that he had been on the verge of winning the case. “It’s the first time modern technology struck us in that fashion, and it hit us right over the head.”

It might be called a Google mistrial. The use of BlackBerrys and iPhones by jurors gathering and sending out information about cases is wreaking havoc on trials around the country, upending deliberations and infuriating judges.

Last week, a building products company asked an Arkansas court to overturn a $12.6 million judgment, claiming that a juror used Twitter to send updates during the civil trial.

And on Monday, defense lawyers in the federal corruption trial of a former Pennsylvania state senator, Vincent J. Fumo, demanded before the verdict that the judge declare a mistrial because a juror posted updates on the case on Twitter and Facebook. The juror had even told his readers that a “big announcement” was coming on Monday. But the judge decided to let the deliberations continue, and the jury found Mr. Fumo guilty. His lawyers plan to use the Internet postings as grounds for appeal.

While this may not seem like a big problem in an era where the idea that “information wants to be free” prevails, the ability of jurors to access information from the outside world presents serious problems for the legal worlds, in both criminal and civil trials:

Jurors are not supposed to seek information outside of the courtroom. They are required to reach a verdict based on only the facts the judge has decided are admissible, and they are not supposed to see evidence that has been excluded as prejudicial. But now, using their cellphones, they can look up the name of a defendant on the Web or examine an intersection using Google Maps, violating the legal system’s complex rules of evidence. They can also tell their friends what is happening in the jury room, though they are supposed to keep their opinions and deliberations secret.

(…)

Judges have long amended their habitual warning about seeking outside information during trials to include Internet searches. But with the Internet now as close as a juror’s pocket, the risk has grown more immediate — and instinctual. Attorneys have begun to check the blogs and Web sites of prospective jurors.

Mr. Keene said jurors might think they were helping, not hurting, by digging deeper. “There are people who feel they can’t serve justice if they don’t find the answers to certain questions,” he said.

But the rules of evidence, developed over hundreds of years of jurisprudence, are there to ensure that the facts that go before a jury have been subjected to scrutiny and challenge from both sides, said Olin Guy Wellborn III, a law professor at the University of Texas.

“That’s the beauty of the adversary system,” said Professor Wellborn, co-author of a handbook on evidence law. “You lose all that when the jurors go out on their own.”

The dangers here seem to be quite apparent to me. Let’s say, for example, that in a high profile criminal trial a judge has ruled that certain evidence was inadmissible because the police violated the Defendant’s 4th Amendment rights. It wouldn’t be all that difficult for a juror doing a Google search and discovering news reports about this potentially incriminating evidence and telling his fellow jurors about it. Thus, potentially, the Defendant could be convicted because he jury found out about evidence that the jury was never supposed to know about because the Court was trying to protect his Constitutional rights.

This is going to be a difficult problem for the legal system to resolve. Yes, you can ban the jurors from having iPhones, Blackberry’s and other devices capable of accessing the Internet in the Courthouse. Unless the jury is sequestered, though, it’s impossible for the Court to control what jurors do when they get home — or when they get in their car in the Courthouse parking lot.

In the end, it may take stronger warnings from the Judge, along with, perhaps, a contempt citation or two for jurors who willfully violate those instructions, to get across the message that even though you can have the world at your fingertips while sitting in the jury box, you need to pay attention to only the evidence that’s presented to you.