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Web-connected jurors jeopardizing trials

Many ignore research ban, secrecy rules

By John Schwartz
New York Times / March 18, 2009
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NEW YORK - 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 a 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.

Last week, a building products company asked an Arkansas court to overturn a $12.6 million judgment against it after 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 that the judge declare a mistrial after a juror posted updates on the case on Twitter and Facebook. The juror even told his readers that a "big announcement" was coming on Monday. But the judge decided to let the trial continue, and the jury found 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 only on 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, jurors 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 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, 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 routinely check the blogs and websites of prospective jurors.

Keene said jurors might think they were helping, not hurting, by digging deeper.

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 Wellborn, coauthor of a handbook on evidence law. "You lose all that when the jurors go out on their own."

Some courts are beginning to restrict the use of cellphones by jurors within the courthouse, even confiscating them during the day, but the majority do not, Keene said.

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