As the prevalence of internet-capable smartphones increases, so too does the rate of mistrials.
According to The New York Times,
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.
Last week a juror in a large federal drug trial in Florida admitted to the judge that he had been doing online research on the case. The judge then discovered that eight other jurors had been Googling as well, which forced a mistrial and laid eight weeks of work by federal prosecutors and defence lawyers to waste.
In the same week, an Arkansas  court was asked to overturn $12.6 million (USD)  judgment, claiming that a juror used Twitter to send updates during the civil trial.
And defence lawyers in the federal corruption trial of a former Pennsylvania state senator demanded that the judge declare a mistrial because a juror had Tweeted that a “big announcement†(the verdict) was coming on Monday.
In the United States and Canada, jurors are not supposed to seek information relevant to the case outside of the courtroom. They must reach their verdict based only on the admissible evidence.
The principle behind this rule is that information presented in the courtroom must pass through a number of filters before reaching the “triers of fact.” These filters are the adversarial system, the law of evidence, and the discretion of a judge. They are intended to enhance the veracity, relevancy, and legality of information presented to jurors.
For instance, the adversarial system creates the opportunity for information presented to jurors to be responded to and challenged by both parties. The reliability of a witness’ testimony can be challenged in the crucible of cross-examination.
But neither party has the opportunity to challenge information gleaned from a juror’s Blackerry, which may be prejudicial and/or just plain false.
Now, using their cellphones, jurors can read the accused’s blog, or examine an intersection using Google Maps, thereby violating the legal system’s rules of evidence. They can also trumpet the contents of the jury’s secret deliberations to the public by Tweeting, blogging, and texting.
According to Douglas L. Keene, president of the American Society of Trial Consultants, “It’s really impossible to control it.”
Mr. Keene said jurors might think they were pursuing justice and the truth by conducting additional research and detective work:
There are people who feel they can’t serve justice if they don’t find the answers to certain questions.
But according to Professor Wellborn, co-author of a handbook on evidence law,
The beauty of the adversarial system [is lost]Â when the jurors go out on their own.
According to the New York Times,
In the Arkansas case, Stoam Holdings, the company trying to overturn the $12.6 million judgment, said a juror, Johnathan Powell, had sent Twitter messages during the trial. Mr. Powell’s messages included “oh and nobody buy Stoam. Its bad mojo and they’ll probably cease to Exist, now that their wallet is 12m lighter†and “So Johnathan, what did you do today? Oh nothing really, I just gave away TWELVE MILLION DOLLARS of somebody else’s money.â€
See relevant Canadian law by clicking “Read more.”
Canadian Law
Criminal Code, R.S.C. 1985, c. C-46.
647. (1) The judge may, at any time before the jury retires to consider its verdict, permit the members of the jury to separate.
Keeping in charge
(2)Â Where permission to separate under subsection (1) cannot be given or is not given, the jury shall be kept under the charge of an officer of the court as the judge directs, and that officer shall prevent the jurors from communicating with anyone other than himself or another member of the jury without leave of the judge.
Restriction on publication
648. (1) After permission to separate is given to members of a jury under subsection 647(1), no information regarding any portion of the trial at which the jury is not present shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.
Empanelling new jury in certain cases
(4)Â Where the fact that there has been a failure to comply with this section or section 648 is discovered before the verdict of the jury is returned, the judge may, if he considers that the failure to comply might lead to a miscarriage of justice, discharge the jury and
(a) direct that the accused be tried with a new jury during the same session or sittings of the court; or
(b) postpone the trial on such terms as justice may require.
The adversarial/jury system works fairly well a lot of the time, inasmuch as it achieves a verdict that seems consistent with the premises the system is based upon.
However, I would hardly call it beautiful (as Prof. Wellborn does). The “crucible” of cross-examination is often more like a blast-furnace, sometimes more of an ashtray. Go watch a cross-examination — or better yet, try doing some. Sometimes the truth does not out in the end, and sometimes the truth is not actually anywhere to be found in either adversary’s position.
What this Googling-the-facts phenomenon suggests to me is that the jury system continues to fall more and more behind the realities of our society. Jurors who are intelligent and sceptical enough to properly consider the arguments and evidence presented are also fully capable of seeing the weaknesses and inadequacies in those arguments and that evidence. In today’s world, if you want to know more about something, you Google it.
Frankly, I’m very much in favour of increased scepticism and intellectual self-reliance — but these things are anathema to the jury trial, based as it is on nineteenth-century methods and assumptions. The only option available that will preserve the beauty of the system is to confiscate all electronics from jurors for the duration of the deliberative portions of the trial. After all, this is merely an extension of the instructions they receive not to discuss the trial with anyone.