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

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Friday, November 6, 2009

Curiosity Killed The Jury, Take 2: Boston Globe Article Addresses Problems New Technologies Present To Jury Deliberations

Is the jury system broken? I've done several posts over the last year about how new technologies are causing (or should be causing) mistrials across the country. Back in March, I posted an entry about jurors improperly exchanging e-mails during trial and "wonder[ed] whether improper e-mailing among jurors is an increasing problem that courts will have to address at some point." Later that month, I posted an entry about mistrials being declared after jurors improperly used Google and twitter to look up and communicate details about the cases they were hearing.  In May, I  posted an entry about a mistrial being declared after a witness engaged in text-messaging while he was on the witness stand. In June and October, I posted entries about attempts to reign in this type of jury conduct in Michigan and Oklahoma, and it appears clearer than ever that these attempts need to be redoubled because the hits just keep on coming.

An article today in the Boston Globe sets forth three more instances of curiosity killing the jury. According to the article,

In March, a judge in a Florida drug trial discovered that nine jurors had been conducting their own research on the Internet. Blithely ignoring the judge’s instructions, they were doing Google searches on the defendant, checking Wikipedia definitions of legal terms, and unearthing evidence that had been explicitly excluded. The judge called a mistrial.

In Arkansas, a building materials company called Stoam Holdings demanded that a $12 million judgment against it be thrown out because a juror had been sending Twitter messages. One of the juror’s tweets read: “oh, and nobody buy Stoam. Its bad mojo and they’ll probably cease to Exist, now that their wallet is 12m lighter.’’

In a Massachusetts rape case, a juror sent an e-mail to her 800-member listserv halfway through the prosecution’s argument. “Just say he’s guilty and lets get on with our lives!’’ she wrote.

According to Massachusetts Superior Court Judge Robert C. Rufo, "People are used to self-educating," and "Any judge is scared to death of this phenomenon." The Boston Globe article notes that 

Judge Rufo, who chairs the state’s Jury Management Advisory Committee, has been enlisted to come up with new juror guidelines to help prevent Google mistrials. The debate is roiling legal circles nationwide, with some saying that confiscating mobile devices at the courtroom door is needed and others saying it’s too late to put the genie back in the bottle. In Massachusetts, cellphones are banned at federal trials, but most jurors have access to their PDAs at least during long hours in the deliberation room.  

The article also indicates that

Massachusetts Appeals Court Justice James McHugh has been conferring with Rufo on the matter of rogue juries. “I think what’s going on is really a revolution in the way people approach problem-solving,’’ he said. He thinks court procedures need to adapt, or risk slipping into irrelevance. “The trick is to recognize the changing dynamics of learning...and find a way to harness the capabilities of both."

I'm not sure yet about what solution(s) to this problem would work. That said, it appears that the new Michigan regulations in this area (which I mentioned in this post) have worked well so far. According to an article in the Grand Haven Tribune, these regulations, which bar jurors from using cellular phones, computers or any electronic devices while attending a trial or during deliberation, has been enforced in Michigan courtrooms. As a result, "Jury rooms are free of any electronics — 'the only thing in there is a chalk board.'"

-CM

http://lawprofessors.typepad.com/evidenceprof/2009/11/google-mistrialhttpwwwbostoncombostonglobeeditorial_opinionopedarticles20091106mistrial_by_google.html

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