The following story from the Courier Journal only addresses half the potential problem of the digital age and jury trials. Once upon a time, a fair and impartial jury that limited its decision to the law and evidence presented in the courtroom was a given. Then with radio, television, newspaper and old media the problem got worse - did instructing the jury not to talk about the case, read the paper, watch tv, etc work? Well, if it did not work then, what about now with temptation and the means to satisfy that temptation only a keystroke away?
Here's the story:
And don't just assume the problem is jurors making cell phone calls. What about the pediatrician defendant who was blogging in the middle of his malpractice trial sharing attorney client information, disclosing privileged information, and making remarks about the judge, jurors, and lawyers that best not have been made? Twitter updates? Legal research? News stories? Facebook? Myspace? These are all sources of information sharing about the case.
But what about digital distractions from work and home on the cell phone or text message? A cellphone picture of the trial posted on the facebook page?
And the litigant in Kentucky who took it beyond the trial stage and blogged about his appeal.
Of course, on reader's comment to the CJ post shows that the availability of wireless for the jury pool can be as much a part of the problem too.
8/1/2009 9:50:40 AM jtt1960
Now, what about lawyer's blogging on their web sites about cases and controversies?
This AP story has sufficient significance for us that I am including the rest of it below the fold in case it gets dropped by the paper.
INDIANAPOLIS — Jurors are warned not to discuss trials with outsiders or investigate evidence on their own, but texting, Twitter and Google are making it increasingly hard for judges to enforce that rule.
An Indiana judicial panel is investigating what can be done about the problem, just a month after the Michigan Supreme Court issued a rule sharply restricting the use of electronic devices by jurors in that state's courts.
The Indiana Judicial Conference's jury committee assigned staff last week to draft a rule setting uniform limits on jurors' use of electronic devices during deliberations. The rule is scheduled to be presented in October.
Last month, the Indiana Supreme Court decided a civil case in which a juror accepted a phone call during deliberations. The verdict was allowed to stand, but not without a stern warning from Justice Brent Dickson.
Allowing jurors to keep cell phones or other devices, he wrote, is “fraught with significant potential problems impacting the fair administration of justice.”
Worse problems have arisen elsewhere as jurors become increasingly wired. In Florida, a federal judge declared a mistrial in a drug trial in March after learning that nine jurors had done online research about the case.
Also in March, an Arkansas judge turned down a request for a new trial after a building materials company and its owner appealed a $12.6 million verdict against them, alleging that during the trial a juror posted Twitter messages that showed bias. And in England, a woman reportedly was dismissed from a jury after she asked people on Facebook how she should vote.
There is no consensus in the U.S. on how to deal with the problem, according to the National Center for State Courts. Some courts, like the one in Allen County, ban electronic devices from the courthouse. Some judges let jurors keep cell phones but tell them to keep them turned off, while others allow their use during breaks. Some courts, like those in Multnomah County, Ore., include a strict warning against tweeting, texting or online searches in their jury instructions.
Michigan jurors will be told not to use cell phones or other electronic devices at trial or during deliberations except during breaks beginning Sept. 1. Judges also will warn jurors not to use computers or other devices to obtain or disclose information about cases when they're away from the courthouse. New Jersey has a similar rule.
“It's a changing element. These policies are starting to pop up,” said Greg Hurley, an analyst with the National Center for State Courts.
In Indiana, local judges set their own policies and there is no statewide consensus, said Hamilton Superior Court Judge Bill Hughes, chairman of the jury committee whose members are appointed by Chief Justice Randall Shepard. A majority of judges do have bailiffs take phones from jurors during deliberations, he said.
In the case decided by the Indiana Supreme Court, a juror got the bailiff to stand with her while she accepted a cell phone call about a class during deliberations.
“The best practice is for trial courts to discourage, restrict, prohibit, or prevent access to mobile electronic communication devices by all persons except officers of the court during all trial proceedings, and particularly by jurors during jury deliberation,” Dickson wrote in the June ruling.
Problems aren't limited to deliberations, or even the courtroom, experts say. Jurors are rarely sequestered, and curious jurors may not realize that doing an Internet search on a defendant's name or looking up a crime scene on Mapquest on their home computer could violate court rules about seeking evidence independently.
“Even in the course of the trial, if jurors access different things on the Internet they can potentially base their decision on something other than what was presented at trial,” said Joel Schumm, a professor at the Indiana University School of Law in Indianapolis.“I think there has to be a warning to the jurors that they not do any outside research, because people are curious,” he said.
story by charles wilson of the associated press
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