Copyright Law

Mistrial by iPhone, New Technologies Present Challenges in the Courtroom

By David Ardia

While we are generally in favor of allowing new technologies into the courtroom (e.g., live blogging, webcasts, Twitter, etc.)  in order to make it easier for the public to monitor the functioning of our court systems, sometimes technology can be taken too far. 

The New York Times reports today that a juror in Arkansas used Twitter to send updates during a civil trial that resulted in a $12.6 million judgment against the defendant, which may overturned as a result.  The Times also reported that on Monday of this week, defense lawyers in the federal corruption trial of a former Pennsylvania state senator, Vincent Fumo, demanded that the judge declare a mistrial after a juror posted updates concerning the case on Facebook and via Twitter.  According to the Times, the juror even told his readers that a "big announcement" was coming Monday. But the judge decided to let the trial continue, and the jury found Mr. Fumo guilty. 

But it isn't just information going out that has judges and lawyers concerned.  Apparently, some jurors -- even after being instructed not to do any research on their own -- are using Wikipedia and Google searches to dig up information during trial.  In Mistrial by iPhone: Jurors' Web Forays Are Upending Trials, John Swartz writes:

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 Douglas L. Keene, president of the American Society of Trial Consultants.

Judges have long amended their habitual warning about seeking outside information during trials to include Internet searches. But with the Internet now as close as the juror?s pocket, the risk has grown more immediate ? and instinctual. Attorneys have begun to routinely check the blogs and Web sites of prospective jurors.

Besides the fact that these activities could unfairly prejudice the parties in a case, it's likely that judges (already a relatively conservative bunch) will react by banning laptops, cell phones, and other communication devices from the courthouse (in fact, many judges already do).  While I think the Times is overstating the extent of the problem, it's clear that juror shenanigans like this will make it more difficult to convince judges that they should embrace new technologies that increase public access. That's a real shame.

Full post as published by Citizen Media Law Project on March 17, 2009 (boomark / email).