Litigation

Trial By i-Phone, and How To Stop It

By Bruce Nye

    This isn't exactly a California story, but it's something I can just about guarantee is going to be an everywhere story.  It's really interesting, and has tons of implications.

    Today's NY Times reports on jurors using their Blackberries, i-Phones, etc. to do research while the trial goes on, as well as keep their friends and family up to date on the trial.  Both activities, of course, are considered violations of the jurors' oaths just about everywhere.  The Times recounts the story of a criminal trial in Florida that was upended (just before a defense verdict) when a judge conducted an investigation of Blackberry use during trial and found out that eight jurors were conducting research.

    What's the solution?  In California, our standard jury instructions (known as "CACI") include standard admonition language to jurors, and while all of our instructions were re-written not long ago to make them more easily understood, I think juror interest and focus is, shall we say, a little uneven.  They usually get the admonition (which includes "no Internet research") right after they've been impaneled, when they're suffering from the shock of just learning they're going to be stuck in trial for another five to twenty days or more. 

    Please indulge CalBizLit in a couple of war stories:  Here are two contrasting examples I have from two cases I tried within a few weeks of each other.  While they were both pre-Internet, the contrasting ways the judges approached the admonition process has plenty of applicability to admonishing juries in the Blackberry era.

    In the first trial, a San Francisco judge, now retired, gave the standard, mumbled admonition at the beginning of the trial telling the jury not to do any independent research, talk to anybody about the case or form or express any opinions until they were instructed and the case was argued.  Thereafter, whenever the jury was excused for a recess, he helpfully reminded them to "remember the admonition."    I lost (yes, it has happened.  Not often, but it has happened).  And after we found the juror who had completely ignored the admonition, if he heard it at all, I got the case back on motion for new trial.

    In the second case, a Sonoma County judge, also now retired, told us he had written his own admonition, and that it was going to take about fifteen minutes to give.  In forceful language, he explained that the trial consisted of parallel tracks -- one for them, one for the judge;  that while they would be hearing evidence, we would be regularly meeting and talking about legal issues;  that the law was very strict about what they could and couldn't consider and that there were a number of things they needed to do to make sure that the law worked, why it was important, the significance of the law being followed, etc.  And at every break, he read them a separate, custom-written reminder of the high-points, varying it each time.  And at the end of the trial, after he took the case away from the jury and gave my client a directed verdict, the jurors remembered two things above all others:  my client's blue eyes when he testified, and the judge's admonition.

    Moral of the story:  Internet research, trial blogging, Blackberry assistance, they can likely be avoided.  But the judges can't just go through the motions:  they have to speak English, and act like this stuff is as important as it actually is.

Full post as published by CalBizLit on March 17, 2009 (boomark / email).