EvidenceProf Blog

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

Friday, June 19, 2009

Protecting Against The Google Mistrial: Supreme Court Of Michigan Revises Court Rule To Address Technologically Enhanced Jury Misconduct

Yesterday, I posted an entry about the Supreme Court of Michigan's adoption of a new rule of evidence providing that judges "shall exercise reasonable control over the appearance of parties and witnesses so as to (1) ensure that the demeanor of such persons may be observed and assessed by the fact-finder, and (2) to ensure the accurate identification of such persons." Well, the Michigan Supremes also revised Michigan Court Rule 2.516, and the revision addresses an issue that I have given much attention on the blog: How do we deal with the increasing problem of jurors using cell phones, computers, and other devices to discuss and discover information relating to the case that they are hearing. But it didn't go all the way.

If the Michigan Supremes adopted the revision to Michigan Court Rule 2.516 in full, it would have read as follows, in relevant part:

(B)  Instructing the Jury. 

(1) After the jury is sworn and before evidence is taken, the court shall give such preliminary instructions regarding the duties of the jury, trial procedure, and the law applicable to the case as are reasonably necessary to enable the jury to understand the proceedings and the evidence.  MCR 2.516(D)(2) does not apply to such preliminary instructions.  The court shall specifically instruct the jurors that they shall not: 

(a) discuss the case with others until deliberation begins, except as otherwise authorized by the court; 

(b) read or listen to any news reports about the case; 
(c) use a computer, cellular phone, or other electronic device with communication capabilities while in attendance at trial or during deliberation; 

(d) use a computer, cellular phone, or other electronic device  with communication capabilities to obtain information about the case when they are not in court.  As used in this subsection, information about the case includes, but is not limited to, the following: 

(i) seeking information about the criminal record of a party or witness; 

(ii) reviewing news accounts of the case; 
(iii) conducting research on any topics raised or testimony offered by any witness; 
(iv) researching any other information the juror might think would be helpful, such as an aerial map of the scene. 

(e) Any juror who observes or has reason to believe that another juror has used an electronic device in violation of this rule shall immediately inform the court of the violation.

As an article in The Detroit News makes clear, however, the Michigan Supremes "refused to adopt [the] portion of the proposed rule that would have ordered jurors to report on other jurors caught using communication devices in court. They did, however, pass the rest of the proposed revision, which "was spurred by county prosecutors across the state who claimed jurors have been using the Internet to research issues and to check on criminal backgrounds of defendants and witnesses in criminal cases."



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