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Most members of the lay community, and certainly anyone with law school experience, can appreciate America’s jury system and its celebrated function as society’s fact-finding body. Likewise, very few people would seriously argue that the technological advances of the 21st century should be slowed, or that any of the numerous devices used to transmit information instantaneously do not make everyone’s life easier. Although they may lament the ability of their superiors to contact them at inconvenient times, one would be hard pressed to locate an attorney or business person who would quietly relinquish access to his or her Blackberry.
But what happens when centuries of legal tradition collide with the American public’s increasing ability to ask Google for an explanation?
Last week, Federal District Court Judge William J. Zloch of the Southern District of Florida experienced this intersection. Despite his instruction that jurors were not to conduct any trial research on their own, one member of the jury brought to his attention the fact that another juror may have searched the Internet for information pertaining to the trial. Upon questioning the jury about the occurrence, those in the courtroom were greeted with a surprising discovery: eight other jurors had also accessed the Internet with the purpose of conducting additional – albeit prohibited – case research. Once the shock subsided, Judge Zloch had no choice but to declare a mistrial, despite the fact that the trial had already spanned eight weeks.
Unfortunately, this latest example is not isolated. In Arkansas, a juror’s daily trial update on Twitter has called a $12.6 million judgment into question. A juror in a corruption case involving former Pennsylvania State Senator Vincent J. Fumo has done the same by posting updates to both Twitter and Facebook.
Despite orders to avoid extracurricular research, it is difficult to imagine a world where inherent human curiosity would not cause at least some jurors from attempting to learn more about issues that seem alien to them. Many trials involve complex and technical doctrines ranging from patent issues to unclear contract provisions. Additionally, many of the greatest legal minds in America cannot agree or define important legal terms, as exemplified by Justice Potter Stewart’s attempt to explain what he considered obscene. It should come as no surprise that those tasked with making determinations involving unclear issues would seek any available help, especially when they feel that they will not be caught. But what can be done?
Sequestering juries more often would be one solution. By essentially cutting off juries from the outside world, courts could limit the flow of information to only admissible evidence; however, this will probably never materialize. While courts often sequester juries while they deliberate, they seem loathe to the idea of limiting community access for what could be weeks on end. Additionally, one would be hard pressed to convince potential jurors that sequestering them from the rest of society is essential without a very compelling and articulable interest.
Another option would be to relax or modify evidentiary rules in such a way that would take into account the modern pace of the information flow. Again though, this solution fails to solve the problem; evidentiary rules are in place to ensure that juries consider only the most reliable evidence, and one cannot seriously argue that everything appearing on a Google results screen would pass adjudicative standards of reliability. As a practical matter, it would take an overhaul of more than fifty evidentiary codes in order to accomplish this goal in all jurisdictions.
Unfortunately, there does not seem to be an immediate palatable solution to this issue, which, given the popularity of the iPhone and the Blackberry, will almost certainly become more prevalent in the future. Perhaps one day filtering technology will allow courts to limit a juror’s access to the Internet during trial, which could serve as a less intrusive alternative to sequestering. Until that day, the only thing that judges can do is admonish jurors against the consequences of their extracurricular research, and to hope against reasonable hope that instructions to avoid outside research overcome human curiosity. This is one problem, however, that courts may not be able to entirely resolve in the immediate future.
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