INSTINCT

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.