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Google Mistrial

A cornerstone of the American legal system is that judges decide what evidence a jury gets to see and hear. Now, With iPhones and BlackBerrys in their pockets, some jurors are doing their own research. is justice being denied?

By John Schwartz

Last month, a juror in a big federal drug trial in Florida admitted to the judge that he had been researching the case on the Internet, violating not only the judge's instructions but also centuries of legal rules. And when the judge questioned the rest of the jury, he got an even bigger shock.

It turns out eight other jurors had been doing the same thing. The judge had no choice but to declare a mistrial, wasting eight weeks of work by prosecutors and defense lawyers.

"We were stunned," says defense lawyer Peter Raben. "It's the first time modern technology struck us in that fashion, and it hit us right over the head."

It probably won't be the last "Google mistrial": Around the country, the use of BlackBerrys and iPhones by jurors gathering and sending out information about cases is wreaking havoc on trials, upending deliberations and infuriating judges.

Also last month, a company asked an Arkansas court to overturn a $12.6 million civil judgment against it, claiming that a juror used Twitter to send updates during the trial. And in Pennsylvania, defense lawyers in the corruption trial of a former State Senator, Vincent J. Fumo, demanded just before the verdict that the judge declare a mistrial because a juror posted updates on the case on Twitter and Facebook. (The judge let the deliberations continue, the jury found Fumo guilty, and his lawyers say they'll use the postings as grounds for an appeal.)

The Judge Decides

The rules are pretty simple: Jurors cannot seek information about a case on their own inside or outside of the courtroom. They must reach a verdict based on only the facts the judge has decided are admissible, and they are not supposed to see—or even be aware of—evidence that the judge has excluded as prejudicial or for other reasons.

But now, using their cell phones, they can look up anything on the Web, violating the legal system's complex rules of evidence. They can also tell their friends what's happening in the jury room, though they're supposed to keep their opinions and deliberations secret.

A juror on a lunch or even a bathroom break can find out all sorts of details about a case: Google Maps can show how long it takes to drive from Point A to Point B, Wikipedia can help explain a medical condition, and news sites can write about defendants and evidence that the judge has excluded.

"It's really impossible to control it," says Douglas L. Keene, president of the American Society of Trial Consultants.

Many judges have amended their traditional warnings to jurors about avoiding TV and newspaper accounts of the trial to include Web searches. But with the Internet now as close as a juror's pocket, the risk has grown more immediate—and instinctual: It's second nature for many people to check things out online.

Keene says some jurors think they're helping by digging deeper. "There are people who feel they can't serve justice if they don't find the answers to certain questions," he says.

YouTube at The Supreme Court

But the rules of evidence, developed over hundreds of years of jurisprudence, are there to ensure that the facts that go before a jury have been subjected to scrutiny and challenge from both sides, says Olin Guy Wellborn III, a law professor at the University of Texas.

"You lose all that when the jurors go out on their own," Wellborn says.

Courts are grappling with technology in other ways. For example, it's becoming more common for videos to be used as evidence, and in February, the Supreme Court received its first case documents with a YouTube link.

It won't be the first time the Justices have considered video evidence. In a 2007 case, the Justices examined the video of a high-speed police chase, prompting them to overturn the conclusions of a lower court.

A recent study in the Harvard Law Review says that videos could have a huge impact on the Court: If Justices can see for themselves what happened in a case, they may be less inclined to defer to the factual findings of jurors and to the conclusions of lower-court judges.

The number of cases disrupted by jurors doing Internet research is unknown, but as the use of smart phones grows, the number of mistrials is sure to increase. Some courts restrict cell phone use by jurors within the courthouse, even confiscating cell phones while they're inside. But since computer use outside the courtroom can't be monitored (unless the jury is sequestered), jurors are on the honor system once they head home.

The technological landscape has changed so much, says Keene, that judges need to clearly explain the cell phone rules to jurors, "and not just go through boilerplate instructions."

And he says enforcement goes beyond what the judge can do. "It's up to Juror 11 to make sure Juror 12 stays in line."