Courthouse News- Web 2.0 Mistrials – Why is Anyone Surprised?

18 March 2009 Internet, IT & e-Discovery Blog Blog
Authors: Peter Vogel

No surprise at all that the New York Times reported that there has been a rash of mistrials because jurors are searching Google and Wikipedia about the parties, lawyers, and subject matter of the trials. As well, jurors are sending texts, emails, and Tweets (on Twitter) during trials. The traditional rules of trial require that judges admonish jurors to do no independent research about the dispute and to only rely on the evidence presented during trial and argument of the lawyers, and not discuss the case with anyone, even other jurors until deliberations. Actually in days gone by it was relatively impossible to stop jurors from doing their own investigations of going to crime scenes or reading about parties in newspapers, or watching television stories about trials in process. There was virtually no way to police jurors from discussing among themselves the issues in dispute before deliberations. But in today’s Web 2.0 world it’s not possible to restrict jurors at all.

Power of Cells

Without a lot of imagination it is easy to realize that our cell phones allow jurors to text, send emails, post blogs, and send Tweets, not to mention search the Internet while sitting in a jury box or room. So even if courts were to confiscate jurors’ cell phones during trial, surely when the jurors go home at night they can use their cells and the Internet to their hearts’ delight.

Evidence Present in Court

Lawyers spend most of their time in preparing for trial by examining trial witnesses in depositions and reviewing documents to determine what evidence will be presented during trial. The opposing parties do everything possible to restrict bad evidence under the rules of evidence and procedure, and it’s the job of judges to determine what evidence may be shown to jurors. Actually evidence is presented in trial by asking witnesses to identity and authenticate, and then it’s up to the jury to weigh all the evidence and the credibility of the witnesses who vouch for the evidence.

Accuracy of Information on the Internet?

One of the sharp realities of the Internet is that there is no assurance that just because information is found on the Internet that it’s true and accurate. This has been one of the challenges of the Wikipedia in that the articles are posted and updated by individuals who may, or may not want the truth to be portrayed. As a matter of fact many judges will not allow lawyers to cite Wikipedia as legal authority because of skepticism of the authenticity of the content. On the other hand just because Google, Yahoo!, or other search engine happens to push a particular link, pdf, or website to the top of its search list does mean that there is any truth to the content found at that url.

Where are we Headed?

It’s likely that the mystique of a jury trial where jurors only rely on evidence presented in the courtroom will never be the same. Without question the number of mistrials will only grow and cause great difficulty for the judicial system.

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