Wednesday, March 18, 2009

Judge Declares Mistrial by iPhone...

How do you force someone to NOT access specific information on the internet? It may seem like a theoretical scenario, but it's actually becoming a major problem in the judicial system.

As the New York Times reports, a big drug trial in Florida ended last week when the federal judge, William J. Zloch, declared a mistrial because several jury members had accessed information relevant to the case on the internet.

This is illustrative of a larger pattern. In this Web 2.0 age of Facebook, Twitter, Google, and iPhones, there is an emerging trend of jurors gathering and sending out information about cases that 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.

Short of sequestering every jury in every case, isolating them in solitary confinement with no access to the outside world for weeks at a time, how does anyone suppose this can be prevented? It can't. To instruct jurors that they are not allowed to read an incoming text message, Facebook update, Twitter post, or Google alert about their case is an utter impossibility. The internet of today is as much about receiving information shared by others as it is about searching for it.

That said, the rules of evidence, developed over hundreds of years of jurisprudence, are designed to ensure that juries are untainted and that the facts that go before them have been subjected to scrutiny and challenge from both sides. This is still essential.

Over time, judges will simply be forced to loosen their definitions of what is acceptable behavior, and to instruct their juries accordingly. As always, adjustments must be made to a changing reality. Even in the courts.


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