EvidenceProf Blog

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

Wednesday, March 18, 2009

Curiosity Killed The Jury?: New York Times Story Addresses The "Google Mistrial"

On March 8th, I posted an entry about an appeal in which the Eleventh Circuit refused to allow jurors to impeach their verdicts through allegations that "jurors allegedly exchang[ed] e-mails both during trial and during deliberations."  At the time, I mused that "[t]his was undoubtedly the correct decision under [Federal Rule of Evidence 606(b)], but I have to wonder whether improper e-mailing among jurors is an increasing problem that courts will have to address at some point." Well, yesterday, John Schwartz took on this issue, and the issue of jurors doing internet research, in his New York Times article, As Jurors Turn to Web, Mistrials Are Popping Up

The launching point for Schwartz's article was a "big federal drug trial in Florida" which recently ended in a mistrial based upon nine jurors doing research on the case on the internet." According to Schwartz, this type of mistrial

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.  

And as readers of this blog know, this phenomenon is not isolated.  Indeed, in his article, Schwartz notes that

[l]ast 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 juror resort to outside sources has always been a problem that plagued trials, 

now, using their cellphones, [jurors] 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.

A juror on a lunch or bathroom break can find out many details about a case. Wikipedia  can help explain the technology underlying a patent claim or medical condition, Google Maps can show how long it might take to drive from Point A to Point B, and news sites can write about a criminal defendant, his lawyers or expert witnesses.

These sources have led judges to "amend[] their habitual warning about seeking outside information during trials to include Internet searches."  They have also led attorneys to begin "to check the blogs and websites of prospective jurors."  

Of course, one might wonder whether such behavior is a bad thing, and I would agree with Olin Guy Wellborn III that it indeed is because it allows jurors to consider things that were not filtered through the rules of evidence, which were designed to "ensure that the facts that go before a jury have been subjected to scrutiny and challenge from both sides."  Indeed, it seems to me that it has gotten to the point where some type of change has to be made to account for the rapid encroachment of technology into the jury trial.  The only question is: What type of change should it be?



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