EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, May 18, 2009

The Text-Message Mistrial: Judge Declares Mistrial After Witness Receives Text-Messages While On The Witness Stand

Back in March, I did a post about jurors improperly exchanging e-mails during trial and deliberations and concluded: "I have to wonder whether improper e-mailing among jurors is an increasing problem that courts will have to address at some point."  Later that month, I did a post about mistrials being declared after jurors improperly used Google and twitter to look up and communicate details about the cases they were hearing. A recent case from Miami presented a slightly different problem: A witness engaging in text-messaging while he was on the witness stand.

The trial at issue involved Sky Development accusing Vistaview Development of fraudulently misrepresenting the number of two-bedroom units in the 308-unit Vistaview apartment complex. While Sky Development's chief operating officer Gavin Sussman was on the witness stand, Judge Scott Silverman spoke with attorneys for both sides during a sidebar conference. This conference gave Sky Development chief executive Yizhak Toledano Sussman the opportunity to text Sussman:

One message from Toledano to Sussman said: "We never filed a lawsuit against seller. These people developed the site 40 years ago, in 40 years and know every corner." It wasn't clear from a transcript who sent the second text saying, "We maybe got this document after Sept. 7 when the bank discovered the problem."  

A courtroom spectator noticed the texting and alerted defense counsel. Judge Silverman thereafter questioned Sussman about the texting, and Sussman admitted what he had done. Then, upon defense counsel's motion, the judge declared a mistrial because "[a] basic trial rule prevents people on the witness stand from communicating with anyone about their testimony during recesses or other breaks."  

Before declaring that mistrial, however, the judge laid into Toledano in a heated exchange:

"Let me be really frank about this," the judge said. "I never had this happen before. This is completely outrageous, absolutely outrageous."

Toledano responded, "It was on a break."

Silverman shot back: "It doesn't matter. You are communicating about the case and the subject matter of the case with a witness who is currently under oath and before the jury,"

Toledano said, "I'm sorry, after we took the break, it's not in the middle."

The judge explained himself again.

"It's a problem on your communicating with the witness about his testimony whether it's before the break, after the break and during the break while he's testifying," he said. "This is outrageous."

Unfortunately, while this was the first time that Judge Silverman had seen such behavior, I'm sure that it won't be the last time he sees it. The question is what courts can do to prevent the Google mistrial, the twitter mistrial, and now the text-message mistrial. 

(Hat tip to Marilyn Thomas for the link)



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