The New York Times

Mistrial by iPhone: Juries’ Web Research Upends Trials

By John Schwartz

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.

“We were stunned,” said one defense lawyer. “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.

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 the president of the American Society of Trial Consultants.

More at the link.

Impossible to control, Hell. Put a few jurors in jail for contempt of court and that will be the end of it.

Jon

Exactly what I was thinking.

I suppose. But then why is it that the possiblity of jurors doing their own independent library research threatens the very fabric of the trial system? Because they might do a search and find some bit of candy set out on the web by some paid-advocate for them to find? How much worse can that be, compared to the artifically filtered crap they're exposed to during the trial? There's absolutely nothing jurors might find on the web that isn't less outrageous than what they're fed in the courtroom. The only issue is that this leads to loss of control by the judge and attornies over pertinent information, which they hate.

We allow jurors to enter deliberation with everything they already know, in their heads. Why isn't that a problem? Indeed, we rely on it, do we not?

What's next-- keeping all jurors in an embassy or NSA-type clear bubble, inside of a Faraday cage?

How many trials have you seen that the jurors were polled afterward, and said that if they'd known during the trial what they later learned afterward, they'd have voted differently. Is that a good thing, or not? Which vote should count in the name of maximal "justice"?

What are you drinking, Man?

Wake up and smell the coffee.

Jon

This expresses the worst understanding I've ever heard of the jury system. Control of information guided by the rules of evidence is the very heart of the matter. You can't possibly have a fair jury trial without this. The "vote" that counts is the one conducted based on properly admitted evidence, subject to limitations under the rules after an opportunity for motions and arguments about what should be excluded.

I was a juror last year, while a high profile case was in session in an adjacent court - fortunately I missed that and served on another trial. But I spent time in the juror's waiting room with the unlucky jurors of that trial.

The waiting room was full of newspapers detailing the very same trial, and there were TVs showing news updates.

Weirdly, as we walked into the courthouse, and sat down to await being called, we would watch news footage of the same entourage walking into the building some 5-10 minutes earlier!

Any alternative would basically just swallow up the exclusionary rule (among other rules of evidence). Wanna do unconstitutional searches? Fine, but make sure the discoveries are "leaked" online so that jurors will find them anyway. Hearsay, character attacks, anti-insurance company screeds? Post them all online!

I understand Milton's frustration--particularly in the case of expert testimony, where courts have an unhealthy agnosticism about what the jury gets to hear. That said, if the parties don't know what the decision-makers see, they have no way of rebutting whatever mistaken claims the relevant Wikipedia article might have said at the moment they read it. Allowing the parties to challenge each other's evidence is kinda the whole point of having trials.

In other words, you want a decision made by jurors which is equivalent to giving them one Wiki article FAQ to read on the matter. One which was created by an editwar between opposing counsels and the judge, using some chosen input from outside sources, which they either all agree on, or else the judge forces them into if they don't. And no more. And you think that's a more fair way to do any complex decision than the way we otherwise do all other decisions in our lives, including all other life-and-death ones.



You know, you may like Wikipedia more than you think. Just look into your heart. It's a fairyland of information-control. If you like that sort of thing.

No exactly the opposite. I don't want the jury system to take the least tiny step in the direction that leads to the made-up-as-we-go-along ArbCom process, complete with pillory and a chance for any idiot to give "evidence" or just fling accusations like monkey poop. The jury system is opposite of a wiki with a thousand years of slow development tested and shaped by people who knew what they where doing, while giving the final say to ordinary people.

Also if you are every "up against it" as a criminal defendant a jury trial is your best chance to avoid a conviction based on the "creditably" of the police and prosecutor. With a jury trial you have a reasonably good chance of not being convicted unless the prosecutor actually lays out a persuasive case based on competent evidence.

Contempt of trial for what? Jurors aren't forbidden to read newspapers, watch TV news, listen to the radio ... why should they not be allowed to access the internet?

I've got no idea what it's like in "the land of the free", but I can state from experience that the only restriction placed on jurors in the colonial homeland is that mobile phones are not allowed in the jury room while the jury is deliberating. And unlike in the States, it's a criminal offence here to reveal what went on in the jury room.

They most certainly are forbidden to do these things, at least in US, if the court finds it would undermine a fair trial.

So jurors in the US aren't allowed to read newspapers? You have two kinds of juries over there though, which one are you talking about?

My god, what did you do just look it up on Wikipedia? As best as I can tell you are talking about grand and petit juries. This is a pretty lame distinction as we are talking about trials.

Sure. And post the rebuttals online, too. It starts to get almost like politics, doesn't it? And if it's good enough to select our lawmakers and our laws, why isn't it good enough to decide individual cases?

The worst thing about this, is that suspect you really don't believe it. If you have a so-called "judicial trial" (bench trial) in a criminal case (one held in a state where a judge can decide the case, at request of the defense), or an appeals trial in front of a panel of judges, or for that matter at a military tribunal, or a judicial trial in all those countries that don't even use juries, you don't have seclusion for THEM. Nothing prohibits them doing further research. Indeed, if you're a supreme court justice at state or federal level, you can hardly avoid it (and with a lot of clerks to help you). The problem here is not that you don't trust the deciders to do this on their own-- what it is, is a sort of elitism where you don't trust anybody who isn't a judge to do it, on their own.

Bah A judge, at best, is just a lawyer dressed up in a black robe. At worst, not even that. Some are stupid. But I see no reason why jurors should be subject to any more sequestration than the judges who handle the same sorts of cases when jurors are not involved.

Did you ever see the film version of Twelve Angry Men? The pivotal moment is where they request the switchblade used in the crime, and it has a handle with a fancy design, and somebody sticks it into the jury table and opines that it's not likely there are many like it. Then....THUNK! Henry Fonda sticks a nearly identical knife into the table beside it, which he informs all that he's bought with no difficulty, just that day. That's the beginning of the turnaround. Of course, it's all utterly mis-trial making stuff if a juror does it, but not if an appeals judge does. So what gives? Elitism is what gives.

As for the exlusionary rule, which "punishes" law enforcement by excluding illegally obtained evidence (even if it bears on the truth) from the jury, it's a red herring. The problem is illegally obtained evidence. If you want to punish law enforcement for doing it, fine them with huge fines which they are personally responsible for, as you suggested be done for juries which do things you don't like.

What, you say! We can't do that! That would be punishing people for things they did wrong, in good faith!

Hehehehehe. Since when has this ever bothered civil litigation people? Certainly not when it comes to other professions!

Fortunately that was only a movie. That would be a mistrial. Period.

You clearly have no idea what you're talking about, so don't try to pretend that you do. I have been a member of several criminal trial juries in the UK and I can categorically state that jurors are not segregated from the rest of society except in the most serious of cases. Quit blustering.

Way too Web-twooeey for me. Indulge yourself all you like.

What we're talking about is jurors using the internet while in session and deliberation. Which is a serious matter. You just can't be having that and it should be all too obvious why.

Not quite sure what you mean by "in session". There was a recent case here where a juror was charged with contempt of court because she was reading a novel during the trial. And I already said that that jury deliberations are private. But where a case lasts for more than a day, as many do, it's ridiculous to suggest that jurors can't read newspapers, watch TV, go on the internet; they do and they can. What they're forbidden to do is to discuss the case with anyone except their fellow jurors.

Ermm, if that were true, most advanced countries would use nothing but jury trials. In fact, many do not, and even those that do, don't use them all the time. It's quite common in European countries to have panel of judges sitting with citizens alongside them. They DECIDE what evidence they want to hear, which means they can listen to all the poop-flinging they want. But there is no oppressed jury who ONLY can take what they are fed, as we know it. And you know what? They do fine.

Yes, and you have a reasonably good chance of being convicted of a crime you didn't do, if it's something horrible like a child-murder that there's no other good suspect. Or the evidence is too complicated for the jury of boobs you got stuck with. Do you know who many satanism and satanic-child-molestation cases in the US got decided like witch trials, by juries? All overturned later.

On the other hand, if you're an O.J. Simpson, or the Rodney King cops, and the jury has some sympathy for you, you can get away with murder or battery or whatever. I guess that's cool.

In some countries, though, if you have a choice between a bench trial and a jury trial, and you pick a jury trial, the jurors are likely to presume you're probably guilty, or else you would have chosen a judge. So it works both ways.

A similar principle applies if you have committed a crime while in the military, and have the choice between being judged by a civilian jury or a military tribunal (as happens occasionally in some cases). It's said that if you're innocent, pick the tribunal, but if guilty, go for the jury. But of course, the tribunals and jurors know this also.

I've been on several juries in the U.S. Even on minor criminal cases, jurors are instructed not to discuss the case amongst themselves outside the jury room, not even at lunch, which we had to take in the courthouse cafeteria, nor with anyone else, so long as the trial was in progress.

Cellphones, and anything that might serve as a recording or transmitting device, were strictly verboten.

Jon

Yes, that is indeed the standard US policy. Even if the jury is allowed to go home, they're supposed to police themselves and not look into the matter on their own.

Of course, even if they're honest, there's the matter of WP:SYNTH even if WP:NOR is forbidden. Some juror's going to put 2+2 together, and how are you going to rebutt what's happening in his or her own cortex, let alone what he or she decides to share with fellow jurors?

You're stuck with the problem of people thinking for themselves no matter what you do. All you can control is the class of people.

In the US, they bounce half the juror-candidates right away. And often it's the professionals or highly educated who are first to go. In the UK they take just about all comers. Which is fair?


Can judges in bench trials or tribunals use the library or internet? If this all-too-obvious, I'm afraid somebody has forgotten to explain it to judges.

Since when did Wikipediot rules have anything to do with the Real World?

Seriously, Man, what are you smokin?

Jon

I've been on several juries here in the UK. In the cafeteria at lunchtime and during other breaks the TV was quite openly showing the national and local news; some jurors were using their laptops to access the internet, and everyone had their mobile phones and was free to use them. We were quite free to go out for lunch if we chose; restrictions only applied when the trial was actually in progress and during the jury deliberations. We all went home each evening as normal and the only restriction placed on us was not to discuss the case.

As I said. And yet, the movie illustrates why it should not have been.

That's the same in the UK. With the exception of phones, which are not prohibited in the cafeteria, but are obviously off limits in court.



Correct. You're right about laptops. The cafeteria I sat in actually had an internet connection for that purpose.

Well heck, why have trials at all? We can post a CNN poll and save lots of money.


Actually, you're wrong about this. Take a look at the ABA Model Code of Judicial Conduct 2.9( c) "A judge shall not investigate facts in a matter independently, and shall consider only the evidence presented and any facts that may properly be judicially noticed." I'm pretty sure they thought about the internet too, because the official comments include "The prohibition against a judge investigating the facts in a matter extends to information available in all mediums, including electronic." (Just took the MPRE 10 days ago, and actually still remember some of the rules. One of the questions on the test was about a judge who hypothetically drove down to look at the scene of an accident--that's forbidden by the Model Code.)

Judges have been reversed and sanctioned for doing homework on cases. Seriously.

I do believe in having expert judges, but primarily so that they can sort good scientific expertise with scientific nonsense--through direct cross-examination, if necessary. Both parties should certainly be apprised of what the judge has learned about a case. Some people have said that special masters would be able to fill this roll in our court system, but I've not seen a lot of evidence that they do very often.

I also think that the Seventh Amendment is a horrifying mistake, and that juries are ill-suited to abstract and lengthy civil litigation. That said, if I were a criminal defendant who was actually innocent, I would want to be judged by people untarred by media smears and prosecutorial oversteps. I would want a jury.


Nice movie. The guy on AMC said it was a story about McCarthyism. As it turns out, Fonda was filling the role of a defense attorney because the defense attorney failed.


Note: I edited because this forum software still stupidly replaces all "(" + "c)" strings into the copyright symbol. I hate this so much.

Hmmmm. Yes, I see that the judge is required to follow the standard rules of evidence even in a bench trial.

So I grant you the point but reserve partial rebuttal inasmuch as judicial notice is a technical term which covers a multitude of sins, as it were. If the judge in a bench trial is free to accept any fact proferred, or to reject any proferred fact and say, in effect {{fact}} (citation or additional stuff needed) then the judge does not need do any direct homework-- that's nearly complete control to make either prosecution or defense do the homework. That still counts as "investigation," if only by proxy. The only way the judge's hands are tied is if neither side brings up something important at all. Which I'm sure can be frustrating as the devil to somebody paying attention.

In any case, if an almanac or map can be taken as fact by judicial notice, why not the internet equivalent of an almanac? "It's a well-known fact that it's a well-known fact." I see that judges are supposed to take mandatory judicial notice of all statute and code, without it being submitted to them. Geez, does that mean they can use LexisNexis from their laptops on WiFi, or not? Okay, now, is the conservation of angular momentum within judicial notice?

This is a bad thing because???

Note: I support the Fully Informed Jury Amendment

(edit: clarify some punctuation, on rereading I am not sure it is clear that I support juries having clues (and having the tools to gain clue))

This is sarcasm, right?

Perhaps the canonical story of Due Process gone awry is the 1925 novel of Franz Kafka, The Trial (Der Process in German). The movie version, directed by Orson Welles, came out in 1962.

Ironically, Welles cut a 10-minute scene where the protagonist encounters a computer scientist who uses her simulation model to anticipate the outcome of the nightmarish trial.

WikiCulture is no stranger to nightmarish Kafkaesque quasi-judicial processes better known as the Spammish Inquisition. So is it any wonder that the impassioned commentators of this thread reflect the clash of turgid and confused ideas that swirl around the shocking corruption of Due Process?

Absolutely not. FIJA is a great idea, it would formalise the common law right that jurors already have. Much injustice has been prevented by jurors thumbing their nose at the system. The more jurors know, and have the ability to find out, the better.

Lawyers and judges hate FIJA, as they see it as a threat to their balliwick. That right there is an indication it's a very good idea.

(the quote is the uncorrected version, I've fixed my wording to try to be clearer in the original post)

Fully Informed Jury is a fantasy right up there with Neutral Point Of View.

The Rules of Evidence in Law are like the Rules of Sampling in Statistical Hypothesis Testing.

There is no such thing as All Relevant Data — that would be ARD — human beings never have more than a sample and so the only question is what amounts to a fair, unbiased sample.

Besides, there is no objective standard here. Whether a jury decision is called "jury nullification" — and I gather that it takes lots and lots of such individual "nullifications" to make a given definition of a crime no longer worth prosecuting — usually depends on whether you are on the prosecution or on the defense.

Jon

Yeah, but the difference is that the other side knows precisely what research is going on and can counter it. If the judge learns about an injury online from Dr. Quacky McQuack, the adversely affected party is SOL. But if the judge demands more evidence on a point, the other side is free to present their own research.

Again, I think the main problem with judges in technical cases is actually that they let too much in. If they don't understand how to interpret journals quoted by experts, then they really don't really have any basis to determine whether testimony is in line with Daubert. I mean, conclusory testimony is bad, but if the expert witness says they formed their conclusion on the basis of a bunch of stuff the judge doesn't understand, how are they supposed to tell the difference? Often, it's just a resume contest, which doesn't really do much. Everyone knows who's buttering their bread.

It is; that's why if there's any hint that a potential juror already knows anything relevant, both sides' lawyers will be fighting to get them excluded.

For example, last time I was called for jury duty, we were in voir dire for a case about a guy who had allegedly fired a gun in his apartment and the bullet went through the ceiling and wounded another person — one of the prospective jurors said he lived in the same apartment building and that was all it took to be excused.

Jon

Same department building?!? I sat in a jury selection in court, where potential jurors were removed who lived in the same town as the defendants. And it wasn't a small town either.

No doubt he was excused because he may have known either the defendant, the plaintiff, or some of the witnesses. He was most certainly not excused because he may have been a ballistics expert, for instance.


Perhaps for their own protection, or to minimise the chances that they would be acquainted with any of those involved in the case.

It was due to the media attention surrounding the case, and the scale of local feeling towards the defendants.

He was asked if knew any of the parties and said not — the deal was that he might have been near enough in earshot to be a potential earwitness, and that was enough. Neither attorney had to waste a challenge, the judge excluded him on that basis alone.

But we are shooting a dead horse — the point is that not every bit of alleged information in the heads of judges, potential jurors, etc., whether they have chips in their heads or not, is considered fair gain.

And that point is established.

Jon

Ah, well in that case I agree with you. On the other hand they always seem to select the most ignorant people they can find, ones not capable of putting two and two together without an expert witness to tell them the total is four.

They'd rather you not even be able to read, actually. They want to be able to tell you what the ransom note says or whether or not the various parts of the murder weapon had matching serial numbers.

But the larger question is: is it right?

You just described The Wikipediot Philosophy to a "T" — except they only allow expert witlesses there.

Maybe there should be a Fully Informed Editor Amendment (FIEA) ???

Nah, it'd never pass …

Jon



As right as any human institution that's been undergoing stepwise refinement for only the last few millennia can be, I reckon.

Of course, all yer Eight-Year-Old Law(Mac)Gyvers on Wikipedia have faaaaar better ideas.

Jon

Refinement to what end? It's hardly like the concept of suppressing the Jury's ability to make its decisions effectively has been completely uncontroversial before the "Web 2.0 Era". The knife scene from 12 Angry Men that Milton mentioned is the same kind of thing.

I'll probably never be able to sit on a jury ever again, since my name is searchable, but in the past when I've managed to get on a jury it has been by keeping my mouth shut and giving no inkling that I knew anything at all. (and not bringing my FIJA leaflets with me either). A slackjawed expression and apparent fascination with Wheel of Fortune seems to help too.

Good Grief … Just because Milton can't give it up when he's been caught talkin through his hat, doesn't mean everybody has to. I try to forgive folks for stuff they write in the middle of the night, but not when they keep blustering on about it for two days.

My dad dragged me along to see that movie when I was a kid — or was it Last Angry Man ? — anyway, I've been on several real juries since then, and no one ever kept us from using what little collective wits we actually had, but a trial is a controlled inquiry, not some Nancy Drew, er, Veronica Mars fantasy.

Jon

This doesn't match my jury experiences, at all.

Trying to take notes during the trial was actively discouraged every time, and usually stifled with promises of access to transcripts... which when asked for later were "not ready yet, sorry... do you want to sequester over night and look at them in the morning?" which went amazingly poorly with the rest of the jurors, oddly.

Frankly, Jon, I'm surprised you managed to ever get on a jury, unless you are even better at hiding your actual abilities and competencies than I am.

That's always been one of my strengths.

Ja Ja

My theory is that Jon looks like this: and acts like this and so he's a shoo-in.