The Inquisitive Jury

The New York Times carried this article about how juries are causing mistrials by doing their own research on the Internet, or by communicating with others outside the courtroom via blackberries and cell phones:

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, a waste of eight weeks of work by federal prosecutors and defense lawyers.

“We were stunned,” said a defense lawyer, Peter Raben, who was told by the jury that he had been 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.

Last week, a building products company asked an Arkansas court to overturn a $12.6 million judgment, claiming that a juror used Twitter to send updates during the civil trial.

And on Monday, defense lawyers in the federal corruption trial of a former Pennsylvania state senator, Vincent J. Fumo, demanded before the verdict that the judge declare a mistrial because a juror posted updates on the case on Twitter and Facebook. The juror had even told his readers that a “big announcement” was coming on Monday. But the judge decided to let the deliberations continue, and the jury found Mr. Fumo guilty. His lawyers plan to use the Internet postings as grounds for appeal.

Jurors are not supposed to seek information outside of the courtroom. They are required to reach a verdict based on only the facts 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 a juror’s pocket, the risk has grown more immediate — and instinctual. Attorneys have begun to check the blogs and Web sites of prospective jurors.

Mr. Keene said jurors might think they were helping, not hurting, by digging deeper. “There are people who feel they can’t serve justice if they don’t find the answers to certain questions,” he said.

But the rules of evidence, developed over hundreds of years of jurisprudence, are there to ensure that the facts that go before a jury have been subjected to scrutiny and challenge from both sides, said Olin Guy Wellborn III, a law professor at the University of Texas.

“That’s the beauty of the adversary system,” said Professor Wellborn, co-author of a handbook on evidence law. “You lose all that when the jurors go out on their own.”

...But juror research is a more troublesome issue than sending Twitter messages or blogging, Mr. Keene said, and it raises new issues for judges in giving instructions.

“It’s important that they don’t know what’s excluded, and it’s important that they don’t know why it’s excluded,” Mr. Keene said. The court cannot even give a full explanation to jurors about research — say, to tell them what not to look for — so instructions are usually delivered as blanket admonitions, he said.

The technological landscape has changed so much that today’s judge, Mr. Keene said, “has to explain why this is crucial, and not just go through boilerplate instructions.” And, he said, enforcement goes beyond what the judge can do, pointing out that “it’s up to Juror 11 to make sure Juror 12 stays in line.”

It does not always work out that way. Seth A. McDowell, a data support specialist who lives in Albuquerque and works for a financial advising firm, said he was serving on a jury last year when another juror admitted running a Google search on the defendant, even though she acknowledged that she was not supposed to do so. She said she did not find anything, Mr. McDowell said.

Mr. McDowell, 35, said he thought about telling the judge, but decided against it. None of the other jurors did, either. Now, he said, after a bit of soul-searching, he feels he may have made the wrong choice. But he remains somewhat torn.

“I don’t know,” he said. “If everybody did the right thing, the trial, which took two days, would have gone on for another bazillion years.”

Mr. McDowell said he planned to attend law school in the fall.

I can understand why judges want to keep this under control, but I am also very sympathetic to the inquisitive jurors.

It seems like the biggest danger might be with complex technical cases, say, regarding drug side-effects, where jurors might try to negotiate, say, the complex and vast gray literature which oftentimes is little better than advertising material.

I served on two juries where outside research came up.

On the 1984 Arizona murder trial jury I served on, against judge's orders, I went to the parking lot where the murder happened. I learned little, but I was curious about the size of the lot where so much happened, and I was able to satisfy my curiosity.

The 1983 drunk driving case was more complicated. We received testimony from the cop regarding the traffic stop, and mitigating testimony, featuring a well-written signature, from the defense, but as time went on, I couldn't help but wonder why the cop hadn't administered a breathalyzer test. The test result could have answered a lot of questions.

In the end, despite opposition by the woman on the jury who belonged to Mothers Against Drunk Driving (MADD), we voted to acquit. In my mind, the cop hadn't appeared to have done his job properly.

Two months later, I saw the MADD woman again at a bowling alley. She said she had learned recently from courthouse friends that there HAD been a breathalyzer test, but the test result, and even test's existence, had been ruled out for the jury's consideration.

For myself, I would have voted to convict even if I had known of the test's existence, much less the actual value. The adversarial jury system triumphed, but over the body of elementary justice. Another drunkard was free to drive, and to maim and kill.

So, I sympathize with the judge and the attorneys, but I sympathize mostly with the inquisitive jurors. Thank the gods for Google!