Renee Loth

Mistrial by Google

By Renee Loth
November 6, 2009

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AS IF digital etiquette isn’t bad enough, the tweeting, texting, and obsessive e-mail checking has started to infect the solemn practice of sitting on juries.

This isn’t just a matter of rudeness or inattentiveness. Increasingly, courts have had to warn jurors that blogging or searching the Web during trial jeopardizes the very foundations of the judicial system. “People are used to self-educating,’’ said Barnstable Superior Court Judge Robert C. Rufo. “Any judge is scared to death of this phenomenon.’’

In March, a judge in a Florida drug trial discovered that nine jurors had been conducting their own research on the Internet. Blithely ignoring the judge’s instructions, they were doing Google searches on the defendant, checking Wikipedia definitions of legal terms, and unearthing evidence that had been explicitly excluded. The judge called a mistrial.

In Arkansas, a building materials company called Stoam Holdings demanded that a $12 million judgment against it be thrown out because a juror had been sending Twitter messages. One of the juror’s tweets read: “oh, and nobody buy Stoam. Its bad mojo and they’ll probably cease to Exist, now that their wallet is 12m lighter.’’

In a Massachusetts rape case, a juror sent an e-mail to her 800-member listserv halfway through the prosecution’s argument. “Just say he’s guilty and lets get on with our lives!’’ she wrote.

The problem is widespread enough that legal experts have coined the term “Google mistrials.’’ No verdict has yet been overturned for texting-while-deliberating, but the retrials themselves are costly and gum up the wheels of justice.

Jurors are supposed to judge cases based on the evidence as presented in the quarantine of the courtroom, not their own private sleuthing. This may be hard to absorb for those accustomed to checking - and sharing - everything from baseball stats to arcane legal theories at the tap of a thumb. So maybe it’s worth reviewing why jurors aren’t allowed to go rogue.

Say a Google search reveals that a defendant in a DUI case has a record of three prior convictions. Maybe the information isn’t accurate. But even if it’s true, it will almost certainly prejudice the proceedings. The idea behind a fair trial is that jurors only consider evidence in the discrete case before them. That’s why prior convictions aren’t generally admissible in court.

But there is something larger at play. On the Internet, everyone is an expert. Buying a new car or toaster? You can get unbiased reviews from fellow consumers. Got an aching back? Check out WebMD. “The rise of digital technology has devalued expertise across the board,’’ observed journalist Mat Bai at a recent symposium about the Internet’s influence. Such a cultural shift has dire implications for a trial system that relies on testimony from expert witnesses.

Judge Rufo, who chairs the state’s Jury Management Advisory Committee, has been enlisted to come up with new juror guidelines to help prevent Google mistrials. The debate is roiling legal circles nationwide, with some saying that confiscating mobile devices at the courtroom door is needed and others saying it’s too late to put the genie back in the bottle. In Massachusetts, cellphones are banned at federal trials, but most jurors have access to their PDAs at least during long hours in the deliberation room.

Massachusetts Appeals Court Justice James McHugh has been conferring with Rufo on the matter of rogue juries. “I think what’s going on is really a revolution in the way people approach problem-solving,’’ he said. He thinks court procedures need to adapt, or risk slipping into irrelevance. “The trick is to recognize the changing dynamics of learning . . . and find a way to harness the capabilities of both.’’

This is all very forward-looking. But for now, can’t jurors be weaned from their cellphone dependencies for the few days it takes to conduct most trials? If strict and explicit instructions aren’t doing the job, remove the temptation. Bored or restless jurors can read or practice their Sudoku or write letters. Surprising to some, perhaps, all these things existed before the Internet and can still be done offline.

Renée Loth’s column appears regularly in the Globe.

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