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If it’s okay to Google someone before a first date or job interview, why not during the jury selection process?
During a Morris County medical malpractice trial on May 14, 2009, Superior Court Judge David Rand asked plaintiff’s lawyer Mitchell Makowicz Jr. if he was Googling jurors’ names during the selection process. The plaintiff’s counsel responded, “Your Honor, there’s no code law that says I’m not allowed to do that. . . .I’m getting information on jurors — we’ve done it all the time, everyone does it. It’s not unusual. It’s not. There’s no rule, no case or any suggestion in any case that says.” Makowicz was scolded by the court and ordered to disconnect. Now a state appellate court has his back.
On August 30, a New Jersey Appeals Court held that trial lawyers can Google prospective jurors during voir dire, reversing the trial judge who ordered Makowicz to disconnect from the court house wireless Internet. “That [the plaintiff's counsel] had the foresight to bring his laptop computer to court, and defense counsel did not, simply cannot serve as a basis for judicial intervention in the name of ‘fairness’ or maintaining ‘a level playing field,’” the court said in Carino v. Muenzen. 2010 WL 3448071 (N.J.Super.A.D. August 30, 2010).
While the trial judge said that the attorney’s use of the Internet gave him “an inherent advantage regarding the jury selection process, which [he didn't] feel [was] particularly appropriate,” he was overturned in a decision that embraces both technology and ingenuity. Or Smartphones, depending on how you look at it.
Although trial judges have wide discretion to control the conduct of a trial in their courtrooms, that authority is circumscribed by “the judge’s responsibility to act reasonably and within constitutional bounds,” they said. One cannot derive a competitive advantage from a resource that is accessible by all.
Courthouses in all twenty-one counties offer wireless Internet access, thus, there are now twenty-one more reasons to regret that decision not to buy stock in Google. Oh, and in case you were wondering, while Mr. Macowicz may have won quite the victory for attorneys all over the Garden state, the trial resulted in a win for the defense.
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