jury – Attorney Evan Brown

September 17, 2010 Evidence, Litigation

Juror internet research again causes criminal conviction to be overturned

Child molester’s conviction vacated because juror read articles about victim’s alleged injuries.

Lockwood v. State, 2010 WL 3529416 (Nev., September 3, 2010)

Last week it was manslaughter. This week it’s child molestation.

Defendant was convicted on multiple counts of the heinous crime of sexual assault of a child under the age of sixteen. He moved for a new trial when he learned that the jury foreperson did some internet research on the nature of the injuries suffered by the victim. The trial court denied the motion for a new trial, but the Nevada supreme court overturned the conviction on the basis of the juror misconduct.

To be successful on a motion for new trial, the defendant had to show (1) the occurrence of juror misconduct, and (2) that the misconduct was prejudicial.

The court held that although independent research by a juror generally would not give rise to the presumption of prejudice, in this case, the independent research did rise to that level.

The jury foreperson consulted eight to ten internet articles on the nature of the victim’s injuries over the course of forty-five minutes and shared her research with the rest of the jury during deliberations. The court held that by conducting her own research and relaying that information to the rest of the jury, the foreperson engaged in misconduct that was prejudicial.

The information related directly to whether it was possible that the victim was assaulted. Moreover, by sharing that information, the foreperson might have bolstered the credibility of both the victim and the State’s expert witness and thereby infected the deliberations such that there was a “reasonable probability that the information affected the verdict.”

September 4, 2010 Litigation

Judge should have let lawyer Google potential jurors during jury selection

Carino v. Muenzen, 2010 WL 3448071 (N.J.Super.A.D. August 30, 2010)

The courthouse in Morris County, New Jersey provides wi-fi access. As jury selection began in a medical malpractice case, the plaintiff’s lawyer used his laptop to do some real time research on the members of the jury pool. The judge noticed the research taking place and called the lawyer out. Here is the exchange between the lawyer and the judge:

THE COURT: Are you Googling these [potential jurors]?

[PLAINTIFF’S COUNSEL]: Your Honor, there’s no code law that says I’m not allowed to do that. I-any courtroom-

THE COURT: Is that what you’re doing?

[PLAINTIFF’S COUNSEL]: I’m getting information on jurors-we’ve done it all the time, everyone does it. It’s not unusual. It’s not. There’s no rule, no case or any suggestion in any case that says-
….

THE COURT: No, no, here is the rule. The rule is it’s my courtroom and I control it.

The judge made the plaintiff’s lawyer close his laptop.

The trial proceeded and the jury found in favor of the defendant. Plaintiff sought review with the appellate court. On appeal, he argued that the court erred when it prohibited his attorney from accessing the internet during jury selection.

The appellate court found that although a trial judge is given wide discretion to control a trial in his or her courtroom, that authority is circumscribed by the responsibility to act reasonably. In this case, the appellate court found that prohibiting the web searches during voir dire was unreasonable:

There was no suggestion that counsel’s use of the computer was in any way disruptive. That he had the foresight to bring his laptop computer to court, and defense counsel did not, simply cannot serve as a basis for judicial intervention in the name of “fairness” or maintaining “a level playing field.” The “playing field” was, in fact, already “level” because internet access was open to both counsel, even if only one of them chose to utilize it.

Nevertheless, the court concluded that plaintiff did not demonstrate any prejudice resulting from the trial court’s ruling. He did not identify any juror who was unqualified or as to whom he claimed he would have exercised a peremptory challenge, even though he subsequently had the opportunity to perform an internet search concerning each juror.

The court went on to note that inasmuch as jury selection took two days, plaintiff’s counsel could have researched the prospective juror lists overnight or during breaks, and could have done so before the testimonial portion of the trial started on the third day.

Photo courtesy of croncast under this Creative Commons license.

January 2, 2010 Litigation

Some thoughts on jurors doing internet research – keep the process clamped down

People v. Carmichael, — N.Y.S.2d —, 2009 WL 5126920, (N.Y.A.D. 4 Dept., Dec 30, 2009)

A recent decision from a New York appellate court gives us occasion to think about the problem of jurors doing web research to find information relating to the case.

The Carmichael Case

A jury convicted one Carmichael of murder. One of the jurors did some internet research during the trial on the question of whether the gunshot wound on the victim was a close contact wound or was inflicted from a distance. When Carmichael discovered the juror’s research, he moved to set aside the jury’s verdict. He argued that the juror’s misconduct caused prejudice to a substantial right.

The trial court denied the motion and Carmichael sought review. On appeal, the court held that the trial court properly denied the motion to set aside the verdict.

It found that Carmichael suffered no prejudice to a substantial right because the juror’s testimony at a hearing on the matter showed that the information found during the internet research was not helpful, that he remained confused even after the research, and that he based his verdict only on the evidence presented at trial.

The Modern Person’s Connection to the Web

The sense of connection that the modern person feels within the web causes an intriguing disruption to the traditional method of the jury trial system. It calls us to evaluate whether it’s fair to characterize conduct like that of the Carmichael juror as “misconduct.” As this Time article notes (and as we all know from our own experiences), it is natural for jurors to desire background, contextual information about the matter being considered.

The tension applies to the problem of jurors acquiring information concerning the case as well as the problem of jurors distributing information they have, or making inappropriate connections with others in the process. The past few months have shown us, for example, stories of improper attempts by jurors to friend witnesses, prohibitions on judges connecting with lawyers, questions of witness intimidation through Facebook, and orders prohibiting courtroom tweeting.

In most instances this tendency to want and share information is a positive attribute. Skepticism, rationality and transparency are noble qualities. But information crossing the abstract borders of the trial court can jeopardize the fairness that the process has historically ensured. It’s no small problem. Even Britain’s Lord Chief Justice recognizes that the ability to so easily get information external to the case “changes the whole orality tradition [i.e., oral testimony] with which we are familiar.”

It’s not a new problem. I was writing about it almost five years ago. Here’s a post I wrote and a podcast episode I did about it back in 2005.

Keep ’em Clamped Down

At the most general level there are two options for handling the present tension. Courts could assimilate the modern tendency and simply leave the process unchecked — allowing information to flow in and out as if on the breeze. The other option would be to clamp down, as the courts in Michigan have done, enacting rules that prohibit jurors doing research and disseminating information during the proceedings.

Our tradition should tell us to go with the latter, that is, clamping down. Looking at it a certain way, there is nothing different in kind occasioned by modern communication methods that mandates information to be free flowing. Though in the past it would have been less feasible, it would not have been impossible for jurors to share information during the process or do external research during off hours. To foster the fairness of the proceedings, courts have historically fortified the abstract walls of the courtroom, permitting the jurors only to consider the evidence made a part of the record. Think about it — that’s the entire basis for having rules of evidence in the first place.

So even though it’s easier to get information these days, and even though jurors want to do that (and in most situations outside of jury duty should be encouraged to do so), there is no good reason not to enforce strict regulations prohibiting outside research. Whether a juror should be permitted to share information during the process is more subtle — there are more concerns there about openness in the process implicated. Absent national security or other similar reasons, we generally don’t want proceedings to be incommunicado.

The solution should not be an assimilation and accompanying dissolving of the borders of the walls around the process, but should come from education of the jury pool. The quasi-closed system of the proceedings, moderated by rules of evidence helps ensure fairness and accuracy. To the extent jurors are helped to understand such a notion of “information regularity,” the more likely they are to see that it makes good sense.

Jurors only photo courtesy Flickr user dmuth under this Creative Commons license.