Sunday, May 29, 2011

The Google Mistrial

Go to page 71.

Asking the judge to question jurors in the middle of the trial may emerge as a new tactic to get a mistrial declared.

"...But the ubiquity of instant, electronic communication
and mobile applications for social networking sites such
as Facebook, Twitter, MySpace, and LinkedIn allows
jurors to research the issues in the cases on which they
serve, as well as to immediately interact with others. So,
how does this play out?
In a Fort Lauderdale, Florida, drug trial in March 2009,
a juror informed the judge seven weeks into the trial that
she overheard a fellow juror talking about researching
the case. The judge interviewed all 12 jurors, and after a
majority admitted searching Google for the defendant’s
name and medical terms, the judge declared a mistrial.
Other instances of Google “research”—including juror
use of Google’s Earth Street View to examine crime
scenes—have occurred with such frequency in recent
years that legal experts have coined the phrase, “Google
mistrial.” John Schwartz, As Jurors Turn to Web, Mistrials
Are Popping Up, N.Y. Times, Mar.17, 2009. In February
2009, an Arkansas juror used his handheld mobile device
to post messages on Twitter during court proceedings,
including the following tweet: “I just gave away twelve
million dollars of somebody else’s money.” Id. The judge
denied the defense counsel’s motion for a new trial, and
the decision has been appealed. Id.
A January 28, 2010, memorandum to all federal district
judges from U.S. District Judge Julie Robinson—
chair of the Committee on Court Administration and
Case Management of the Judicial Conference of the
United States—endorsed a set of suggested jury instructions
that district judges should consider to deter jurors from using electronic technology to research or communicate
about trials on which they serve.
The proposed model instructions cover juror conduct
through a judge’s acceptance of a jury’s verdict:
You should not consult dictionaries or reference materials,
search the Internet, websites, blogs, or use any
other electronic tools to obtain information about
this case or to help you decide the case…. You may
not communicate with anyone about the case on your
cell phone, through e-mail, Blackberry, iPhone, text
messaging, or on Twitter, through any blog or website,
through any Internet chat room, or by way of any
other social networking websites, including Facebook,
MySpace, LinkedIn, and YouTube."

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