Mistrial by iPhone: Juries’ Web Research Upends Trials (NYT)
Last week, a juror in a big federal drug trial in Florida admitted to the judge that he had been doing research on the case on the Internet, directly violating the judge’s instructions and centuries of legal rules. But when the judge questioned the rest of the jury, he got an even bigger shock.
Eight other jurors had been doing the same thing. The federal judge, William J. Zloch, had no choice but to declare a mistrial, wasting eight weeks of work by federal prosecutors and defense lawyers.
“We were stunned,” said the defense lawyer, Peter Raben, who was told by the jury that he was on the verge of winning the case. “It’s the first time modern technology struck us in that fashion, and it hit us right over the head.”
It 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.
Jurors are not supposed to seek information outside of the courtroom. They are required to reach a verdict based only on the facts that the judge has decided are admissible, and they are not supposed to see evidence that has been excluded as prejudicial. But now, using their cellphones, they 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.
“It’s really impossible to control it,” said Douglas L. Keene, president of the American Society of Trial Consultants.
Judges have long amended their habitual warning about seeking outside information during trials to include Internet searches. But with the Internet now as close as the juror’s pocket, the risk has grown more immediate — and instinctual.
Instinctual? If this isn’t just hyperbole, then it means that our basic understanding of the knowledge and reasoning processes of individuals have significantly changed. A jury of ‘peers’ means a jury fully equipped with internet, and with knowledge of how to acquire specific information they don’t have prior to entering the courtroom. If that’s a basic ability all individuals have, then to remove this ability is artificial and misrepresents the ‘average person’. If we cripple this ability, then you start to abandon the virtues of having a jury of ‘peers’.
Consider a country where all its citizens are blind. They have always been blind, and the judicial systems takes blindness as one of the basic properties of all its inhabitants. Standards of evidence and what can and cannot be presented in a trial all hinge on a blind jury.
Then suddenly, people start being born in the country who can see. They are able to acquire and discriminate information that would have been impossible for their blind parents. Photographs, for instance, become very useful for jurors making their decisions, whereas photos had previously been banned as they were of no use to blind jurors.
One response to this situation is to call shenanigans on the sighted jurors, and force them to wear blindfolds during a trial. This response involves insisting that your basic assumptions are justified despite evidence to the contrary, and imposing this assumptions on the judicial process. That is stupid and reactionary.
Another response is to recognize that people now have additional abilities that they depend on to make rational, informed decisions, and depriving them of this ability seriously impairs their judgment and insight. So the judicial system is forced to reevaluate its basic assumptions.
While I really enjoy your blindness example, I don’t think the analogy is apt for this situation, because I do not see how the Internet is any different from its predecessors for this purpose.
Let’s assume that seeking information from the internet is indeed instinctual in today’s world. Before the advent of the internet, people sought out information in different ways: televised newscasts, which developed from newspapers of previous generations. Indeed, we have had access to information since the beginning of the judicial system; naturally, it was a slow and arduous process to obtain any news then besides the local gossip. At any given point along this developmental spectrum, I argue that it has always been instinctual for people to seek out information in whatever form of ‘news’ is available. Any ‘peer’ group of jurors would have such instincts, but the judicial systems demand that those instincts be denied for the sake of a fair trial. Although today’s technology outstrips any of the past, it is merely the next logical step in a progression of denying our curious urge to seek information via the popular news source of the time. Just as jurors of the past were not to read the newspapers, today’s jurors are not to Google the defendant.
Other thoughts about this case:
Juries aren’t supposed to interpret the law. They are supposed to determine the facts of the case, and a judge decides how the law applies given those facts.
In particular, the jury is supposed to determine guilt, fault, culpability, intention, and other phenomenon that can only be determined by coming to a judgment about the facts, but that are normative in a way that supposedly doesn’t follow directly from evidence.
Jurors are specifically not allowed to perform their own investigations into the trial. Its the job of lawyers to compile evidence and construct a case; the jury merely has to determine the facts based on this presentation. Jurors are also not allowed to communicate with outside sources about details of the trial, to prevent jury tampering or otherwise influence the juror.
If we are just worried about jury tampering, there are already laws on the books against this crime, and I see no reason in principle why the internet should make the law more difficult to enforce.
But it is certainly true that news about the trial could influence the juror. When the primary means people get the news is through newspapers and television, it is pretty easy to restrict this access. It’s also pretty easy to take away someone’s cell phone, except for all the other essential functions a cell phone provides apart from reading the news (like being a phone). But even supposing we could limit all internet-enabled services to juries, I still think we shouldn’t.
The internet isn’t just a repository of news-related media. It is also a repository of general knowledge that can help a jury make an informed decision about some issue that isn’t necessarily tied to the details of the case, or does pertain to the case but is not about the specific trial. For instance, from the article:
quote:
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.
Say I agree with the last point that news and opinion and specific biographical details about the members of the trial ought to be restricted. Why shouldn’t we allow the jury to get the rest of the information? Why should we insist that jurors don’t acquire general knowledge about road systems, or medical conditions, that are independent of the specifics of the trial? If this is information that the jurors think is essential for making an informed decision, I don’t see why they can’t do the research before formally requesting expert testimony or other more reliable forms of information. In most cases, the general info on the web is reliable enough for some light research, and we would expect jurors to evaluate sources anyway.
Look, it makes sense for a juror to use a dictionary to look up some critical word in the trial; clearly defining a word shouldn’t conflict with the integrity of the trial. But using an encyclopedia shouldn’t be any different, and if the jury is using the internet as this sort of resource, that doesn’t seem to constitute an independent investigation, but just part of the normal process of making an informed decision.
So here’s a proposal: tell jurors they are allowed to use the internet, except to read news and opinion and other information specific to this particular trial, but everything else is fair game. Make them take an oath. Hold them accountable for straying beyond those boundaries. Problem solved.