“Google mistrials” are in the news again. Every few years, we hear about mistrials being declared because jurors were caught researching the facts online. It’s not a new phenomenon — there have always been jurors who felt the urge to find out for themselves what really happened — all that’s new is how easy the Internet makes it. And even Google mistrials have been happening for many years.
Jurors naturally want to investigate on their own. It’s normal. After all, the whole purpose of a jury is to arrive at an official version of the facts, jurors do take this job seriously, and they commonly feel hamstrung by rules of evidence that keep them from seeing the whole picture. Taking the initiative can be thought of as a means to achieving true justice. Such initiative is even the major plot device of that old classic “Twelve Angry Men,” commonly seen as a drama that epitomizes true justice.
The justice system, on the other hand, has evolved over the centuries to ensure justice in quite a different way. Instead of allowing trial juries to investigate the facts, the courts carefully limit the facts to which juries are exposed. Before being spoon-fed to the jurors, facts must first be sifted through rules of admissibility, to ensure that only relevant and reliable information is made available. Then both sides in the trial get to challenge, cross-examine and argue about that evidence. This testing by fire, even if intended to obfuscate rather than clarify the facts, is generally seen as serving the higher goal of a just result.
So unlike “Twelve Angry Men,” when a juror in real life goes out into the world beyond the courtroom, and finds evidence that was not presented at trial which could affect the outcome of the case, justice is deemed to have been frustrated. A mistrial is declared, and everyone has to do it over again. The judge, jury, court employees, lawyers, witnesses and parties will have wasted their time, effort and money.
But it used to take some effort to cause such mistrials, and so they were rare. Jurors may have WANTED to go out and do some research on their own, but few had the time and resources to match their inclination. Nowadays, however, everyone is a research specialist. In everyone’s pocket is a miniature Hitchhiker’s Guide to the Galaxy, a phone or PDA with full access to the Internet. Looking up individuals, events, photos, aerial images, detailed maps, weather, weapons, forensics, public records, and practically anything else is now fast, effortless and free.
There are no obstacles to such research, and so everyone does it. And they do it all the time. It’s not a here-and-there thing like visiting a library; it’s part of the habits of people’s daily lives. The simple fact is that it is something people do naturally and routinely throughout their day. Telling someone not to go online these days is as inane as telling them they can’t talk about their day with their spouses and best friends.
Beyond simple inanity, ensuring that jurors comply with a no-Googling rule is simply unworkable in real life. Access to the Internet is ubiquitous in modern life. It’s everywhere. Unless courts are willing to confiscate all wireless devices of any sort at the courthouse, and then sequester every jury at great expense to ensure that they don’t access the web after hours, then courts are simply not going to be able to prevent Googling from happening. Jurors are going to be instructed not to do it, they’re going to do it anyway in ever-increasing numbers, and so mistrials are going to happen in ever-increasing numbers.
It’s time for modern jurisprudence to catch up to modern reality. Independent juror research simply cannot be grounds for mistrial any more.
It’s not such a stretch, by the way. We already allow jurors to take into the jury room any common knowledge and common sense they already possess. In fact, we insist on it. All that would be required of the law would be a presumption that anything available on the net is common knowledge.
That’s a simple fix, and an intellectually honest one.
What would that mean? That would mean that lawyers would have to be a little more diligent in investigating their cases. They’re going to have to presume that anything on the Internet is common knowledge. So if that common knowledge is wrong, they’re first going to have to realize it’s out there, and then debunk it.
So what? That’s what any good lawyer does now, anyway. If there’s a common perception that happens to be a mis-perception, then effective counsel will do their best to educate the jury to at the very least minimize the effects of that misperception. We do this all the time, in all sorts of cases. Prosecutors try to nullify the perception that circumstantial evidence is somehow less reliable than direct evidence. Defense attorneys try to undo the perception that an eyewitness identification is as damning as it gets. There are tons of examples for every kind of case that goes to trial.
The risk, of course, is that by attempting to debunk an attitude, one may merely highlight it to a juror who wouldn’t have otherwise have thought it. That’s the same risk we take now. We try to minimize it during jury selection, if we can. And we judge the risks and take the course we judge to be best.
In short, the law needs to accommodate modern reality by treating data commonly available as if it people were commonly aware of it. The law may already do so, and the courts just haven’t gotten around to realizing it yet. It really may be nothing more than a simple matter of re-interpretation of a longstanding rule.
So no more Google mistrials, please. Efficiency would be improved, and justice would be served.
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