YourABA December 2011 Masthead

Court best practices for avoiding a “mistrial by Google”

At the Annual Meeting in Toronto, Herbert B. Dixon Jr., a judge on the District of Columbia Superior Court, told several recent stories of juror misconduct related to the use of technology—incidents that are happening with increasing frequency as adoption of mobile devices such as smartphones skyrockets.

  • Six hundred potential jurors were dismissed by a San Francisco Superior Court judge last year after they acknowledged researching online the criminal case before them.
  • A juror for a Detroit trial was dismissed after she posted on Facebook that she was looking forward to delivering a guilty verdict.
  • Baltimore’s first conviction under its gang-prevention statute was overturned when a juror admitted to conducting an Internet search on the defendant’s criminal record.

To help stem these types of incidents, Dixon and other members of the Judicial Division’s National Conference of State Trial Judges developed “A Fair Trial: Jurors’ Use of Electronic Devices & the Internet.”

The paper recommends best practices that courts can adopt. First and foremost, the authors stress that courts adopt “a clear policy that addresses the use of electronics by lawyers, litigants, jurors and courtroom observers,” and that policy should be clearly communicated to those participants, say the authors.

Among other recommendations:

Before selection process – The initial summons sent to potential jurors should admonish them not to discuss or seek information on pending cases. It should also detail the court’s policy regarding possession and use of electronic devices while in the courtroom. This information should be reinforced during the initial orientation.

Jury selection process – The court’s policies on electronic devices and their use should be reviewed by the trial judge for the benefit of everyone in the courtroom. Additionally, either the attorneys or the judge should question jurors about their Internet usage, and have the jurors make a commitment to refrain from using their electronics to gain or send information on the case at hand and the involved parties.

Preliminary instructions – The trial judge should give, in both oral and written form, specific and concrete preliminary instructions precluding the use of electronics during trial. These instructions should be stressed throughout the proceedings, during breaks as well as at the evening recess. As part of the instruction, jurors should be encouraged to report questionable activity by other jurors.

Final instructions – The judge’s final instructions on the law should again include the prohibition on electronics.

Collection of devices – If the court does not have policy that precludes jurors from bringing their electronics to the court, court personnel can collect these devices when jurors are in court, in deliberation or both.  However, collecting electronics requires secure storage and the possibility of liability from loss or damage.

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